International Crimes of State: A Critical Analysis of the ILC's Draft Article 19 on State Responsibility [Reprint 2011 ed.] 9783110901603, 9783110116199

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EUI -

Series A - 1 0

Weiler/Cassese/Spinedi (Eds.), International Crimes of State

European University Institute Institut Universitaire Europeen Europäisches Hochschulinstitut Istituto Universitario Europeo

Series A Law/Droit/Recht/Diritto 10

Badia Fiesolana — Firenze

International Crimes of State A Critical Analysis of the ILC's Draft Article 19 on State Responsibility

Edited by

Joseph Η. H. Weiler Antonio Cassese Marina Spinedi

W G DE

1989 Walter de Gruyter · Berlin · New York

Library of Congress Cataloging-in-Publication

Data

International crimes of state : a critical analysis of the ILC's Draft Article 19 on State Responsibility / edited by Joseph Η. H. Weiler, Antonio Cassese, Marina Spinedi. XII, 368 p. 15,5 χ 23 cm. - (Series A - Law = Droit : v. 10) Based on the proceedings of the Conference on Crimes of State, organized by the European University Institute and the University of Florence, and held at the European University Institute. Bibliography: p. Includes index. ISBN 0-89925-456-X (U.S.) : $90.00 (est.) 1. International offenses — Congresses. 2. Government liability (International law) — Congresses. I. Weiler, Joseph, 1951— . II. Cassese, Antonio. III. Spinedi, Marina. IV. Conference on Crimes of State (1984 : European University Institute) V. European University Institute. VI. Universitä di Firenze. VII. Series: Series A — Law : v. 10. JX5415.I57 1988 88-3681 341.7'7 - del 9 CIP

Deutsche

Bibliothek

Cataloguing

in Publication

Data

International crimes of state : a crit. analysis of the ILC's draft art. 19 on state responsibility / ed. by Joseph H . H . W e i l e r . . . — Berlin ; New York : de Gruyter, 1988 (European University Institute) : Ser. A, Law ; 10) ISBN 3-11-011619-7 NE: Weiler, Joseph Η. Η. [Hrsg.]; Istituto Universitario Europeo < Fiesole > : European University Institute / A

© Copyright 1988 by Walter de Gruyter & Co., Berlin, rights reserved, including those of translation into foreign languages. No part of this ik may be reproduced in any form — by photoprint, microfilm, or any other means — transmitted nor translated into a machine language without written permission from the publisher. Dust Cover Design: Rudolf Hübler, Berlin. Setting and Printing: Arthur Collignon GmbH, Berlin. Binding: Verlagsbuchbinderei Dieter Mikolai, Berlin. Printed in Germany

Preface This volume is testimony to the growing collaboration between the European University Institute and the University of Florence. It presents the results of a highly successful conference* organized by the two institutions to discuss the concept of Crimes of State as found in Article 19 of the International Law Commission Draft Articles on State Responsibility. To the outside observer the Conference on Crimes of State presented a remarkable experience. It convoked around the table judges, diplomats and academicians — all scholars of the highest repute. Participants represented all major legal families and international law groupings. All major religions were presented as were different philosophical traditions. They gathered to discuss a controversial and perhaps even an explosive subject. And yet the debate was characterized by a geniality uncommon in diplomatic settings, rare among lawyers and, should I say, unknown to the most litigious of professions — university professors. Im am pleased to present the results of the conference in book form and thank warmly all those who contributed to the success of this truly transnational scholarly venture. Florence, June 1987

Werner Maihofer President of the European University Institute

* The conference was made possible by a generous grant of the Italian National Research Council (CNR), grant n° 83.01705.09.

Table of Contents Preface by W E R N E R M A I H O F E R , President of the European University Institut, Florence List of Contributors Introduction by

V XI

JOSEPH W E I L E R ,

ANTONIO CASSESE

and

MARINA

SPINEDI

1

Parti Crimes of State: The Legislative History International

Crimes

of

State:

The

Legislative

History

by

M A R I N A SPINEDI

7

Part II Crimes of State: The Problems Revisited The Concept of "International Crimes" and its Place in Contemporary International Law

141

Obligations Erga Omnes, International Crimes and Jus Cogens·. A Tentative Analysis of Three Related Concepts. . . .

151

International Crimes — A Specific Regime of International Responsibility of States and its Legal Consequences . . .

161

Implications of the Institutionalization of International Crimes of State

170

G . ABI-SAAB,

G. GAJA,

B. GRAEFRATH,

P . - M . DUPUY,

Part III Crimes of State: A General Discussion Introduction to the Debate by Η.

E.

Judge T. O.

ELIAS

189

General Discussion TED

L.

STEIN

A . CASSESE,

f , Observations on "Crimes of States"

States H.

194

Remarks on the Present Legal Regulation of Crimes of

BOKOR-SZEGO,

200 Some Comments on State Crimes and Lex Lata

213

R. AGO, Remarks on Some Classes of Crimes by States

215

J.

216

SETTE C A M A R A ,

State Crimes and Lex Lata

VIII

Table of Contents

G.

ABI-SAAB,

On Defining the Concept

217

G.

ALDRICH,

Responsibility and State Crimes

219

The Concept of Crimes of States: Evolution, Operation and Codification

M . BENNOUNA,

E.

Remarks on Deficient Drafting of Article 19

STEIN,

S I R IAN S I N C L A I R ,

220 222

State Responsibility and the Concept of Crimes

of States

223

Lex Lata: Is there already a Diffentiated Regime of State Responsibility in the Geneva Conventions?

225

CASSESE, Critical Remarks on the Applicability of the Concept of Crimes of State to Humanitarian Law

232

CONDORELLI, The Continuity between Certain Principles of Humanitarian Law and the Concept of Crimes of States

233

T. MERON,

A. L.

R. AGO, Obligations Erga Omnes and the International Community BOKOR-SZEGO, Short Comments on the Concept of Crimes of States and Some Related Notions

H.

E . JIMENEZ DE A R E C H A G A , JUS S I R IAN S I N C L A I R ,

Cogens and Crimes of State

239 240

State Responsibility: Lex Ferenda and Crimes of

State S.

237

240 Lex Lata or the Continuum of State Responsibility

MCCAFFREY,

242

M. SPINEDI, Convergences and Divergencies on the Legal Consequences of International Crimes of States: With Whom Should Lie the Right of Response?

244

The Objectives of a New Regime and the Means for Accomplishment

249

Critical Observations on Crimes of State and the Notion of "International Community as a Whole"

251

R. AGO, The Concept of "International Community as a Whole": A Guarantee to the Notion of State Crimes

252

On the Reaction of the "International Community as a Whole": A Perspective of Survival

253

S. MCCAFFREY,

H . D E FIUMEL,

B. GRAEFRATH,

E . JIMENEZ DE A R E C H A G A ,

Crimes of State, Ius Standi, and Third

States S I R IAN

255 SINCLAIR,

State Crimes Implementation Problems: Who

Reacts? C.

DOMINICE,

W.

RIPHAGEN,

256 The Need to Abolish the Concept of Punishment . .

257

Crimes of State: The Concept and Response

258

Table of Contents

C.

J.

DOMINICE, Legal Questions Relating to the Consequences of International Crimes SETTE-CAMARA,

263

CONDORELLI,

Measures Available to Third States Reacting to

Crimes of State B.

260

Some Short Remarks: Consequences and Termin-

ology L.

IX

CONFORTI,

264

The Institutional Framework

266

Part IV Crimes of State: General Overviews of the Debate S.

TORRES BERNARDEZ,

Problems and Issues Raised by Crimes of

States: An Overview D . THIAM,

271

The Need to Better Clarify the Concept of Crimes of

States

279

Part V Crimes of State: Part Two of the ILC Work on State Responsibility B.

SIMMA, International Crimes: Injury and Countermeasures. Comments on Part 2 of the ILC Work on State Responsiblity

283

Part VI Crimes of State: Conclusions J.

WEILER, On Prophets and Judges. Some Personal Reflections on State Responsibility and Crimes of State

319

Part VII Crimes of State: Bibliography M . SPINEDI,

International Crimes of State. Bibliography 1946 — 1984

339

Part VIII Crimes of State: Annexes I. Draft Articles on State Responsibility Adopted So Far by the International Law Commission

357

II. Draft Articles on State Responsibility Submitted by Special Rapporteur Riphagen

365

List of Contributors Prof. GEORGES A B I - S A A B (Professor of International Law, Institut Universitaire de Hautes Etudes Internationales, Geneva) Η . E. ROBERTO A G O (Judge at the International Court of Justice, The Hague) Η . E. G E O R G E A L D R I C H (Member of the Iran-United States Claims Tribunal, The Hague) Prof. M O H A M E D BENNOUNA (Professor of Law, University of Rabat; Deputy Representative of Morocco to the United Nations, New York) Prof. H A N N A BOKOR SZEGO (Institute for Legal and Administrative Sciences of the Hungarian Academy of Sciences) Prof. ANTONIO CASSESE (Professor of International Law, Faculty of Political Science "C. Alfieri", University of Florence and European University Institute, Florence) Prof. L U I G I CONDORELLI (Professor of International Law, University of Geneva) Prof. BENEDETTO CONFORTI (Professor of International Law, University of Rome) Prof. H E N R Y K DE F I U M E L (Institute of State and Law, Polish Academy of Sciences, Warsaw; Judge, Polish Constitutional Court) Prof. C H R I S T I A N D O M I N I C E (Professor of International Law, University of Geneva; former Director of the Institut Universitaire de Hautes Etudes Internationales, Geneva) Prof. P I E R R E - M A R I E D U P U Y (Professor of International Law, University of Paris II) Η . Ε . T. O. E L I A S (President of the International Court of Justice, The Hague) Prof. G I O R G I O G A J A (Professor of International Law, University of Florence) Prof. B E R N H A R D G R A E F R A T H (Academy of Sciences, Berlin, German Democratic Republic) Η. Ε. E D U A R D O JIMENEZ DE A R E C H A G A (Former President of the International Court of Justice, The Hague) Prof. STEPHEN C . M C C A F F R E Y (Professor of Law, McGeorge School of Law, University of the Pacific, Sacramento, California; Member of the International Law Commission) Prof. THEODOR M E R O N (Professor of International Law, New York University)

XII

List of Contributors

Prof. W. R I P H A G E N (Professor of Law, University of Rotterdam; Member of the International Law Commission) Η . E . J O S E S E T T E C A M A R A (Vice-President of the International Court of Justice, The Hague) Prof. B R U N O S I M M A (Professor of Law, University of Munich and Michigan Law School) Sir I A N M. S I N C L A I R (Member of the International Law Commission) Prof. M A R I N A S P I N E D I (Professor of International Organization, University of Parma) Prof. E R I C S T E I N (Professor of Law ( E M . ) , University of Michigan) Prof. T E D L. S T E I N f (Professor of Law, University of Washington, Seattle) Dr. D O U D O U T H I A M (Former Minister of Foreign Affairs, Senegal; Member of the International Law Commission) Dr. S A N T I A G O T O R R E S B E R N A R D E Z (Registrar of the International Court of Justice, The Hague) Prof. J O S E P H W E I L E R (Professor of Law, Michigan Law School, European University Institute, Florence)

Introduction The International Law Commission adopted in 1976, in Article 19 of its Draft Articles on State Responsibility, a distinct category of particularly serious wrongful acts to be called international crimes. This category would entail a regime of responsibility distinct from that of other wrongful acts called international delicts. The reaction to this draft article among states and legal scholars has varied. In the Sixth Committee of the General Assembly a large number of state representatives accepted the new provision and some even considered it as a conditio sine qua non for the adoption of the Draft Articles. Other representatives expressed reservation of or openly rejected this approach. The provision has proved equally controversial in the academic legal literature. Whereas the often fierce controversy may be an indicator of the importance, legal and political, attaching to this issue, a closer examination of the contrasting positions reveals a curious fact: they have frequently been based on different interpretations or a different understanding of the consequences which the ILC intended to attach to the concept of international crimes of states. Not uncommonly, those who criticize the concept of international crimes of states assume that it will create forms of responsibility which the defenders of the concept do not have in mind. Equally, one can find authors who share the same views as to the consequences of international wrongful acts, yet some find it helpful to refer to crimes of states while others do not. Finally, there are those who support the concept of crimes of states and yet disagree as to the consequences which attach to these acts. In short the debate has been characterized by a large measure of discussion at cross-purposes. This volume has several objectives. In the first place it aims to give a relatively up-to-date account of the state of the art in this area; a kind of "Guide to the Perplexed" on the notion of Crimes of State. This objective is achieved principally by the centre-piece of the volume to be found in Part I: a working document by Marina Spinedi which recapitulates the entire "legislative history" and academic discussion of the concept. At the end of the volume we present an exhaustive bibliography on the concept, also authored by Marina Spinedi. The second objective of the volume is to revisit some of the central issues surrounding the concept of Crimes of State with a view to eliminating

2

Joseph Η. Η. Weiler/Antonio Cassese/Marina Spinedi

some of the cross-purpose discussion alluded to above. In Part II the reader will find four studies presented to, and in Part III the edited version of a discussion which took place at, an international conference held at the European University Institute in Florence. It would be helpful to explain briefly the organization of the conference since Parts II and III of the volume follow this organization. The participants to the conference represented a wide mixture of scholars with a broad range of experiences. Participants included the President and several members of the International Court of Justice; several members of the International Law Commission, diplomats and academics representing all major trends in the international legal order: Western, Socialist and Third World. The full list may be found below. We would mention by name in this introduction only two of our distinguished participants: The two special Rapporteurs on State Responsibility: Judge Ago, the author of the concept of Crimes of State in its current guise and his successor Professor Riphagen. Obviously, their participation added a particular dimension to our discussions. The debate, introduced by President Elias, revolved around four themes which are replicated in the organization of the volume. Theme 1 — Lex Lata This theme was introduced by a paper given by Professor Abi-Saab which may be found in Part II. The discussion sought to establish the extent to which international law already differentiated between different categories of wrongful acts, and more importantly between different regimes of state responsibility — even if not utilizing the term Crimes of State. It became immediately apparent that the most fertile example for a differentiated regime was to be found in the context of the 1949 Geneva Conventions. We do not propose to replicate here the contents of the discussion save to say that the first two sections of Part III of this volume contain respectively the debate on Crimes of State in existing law in general and then a special section on the Geneva Conventions as an example of this theme. Theme 2 — Crimes of State and Associated

Concepts

This theme was introduced by a paper given by Professor Gaja which may be found in Part II. This seemed to be an essential theme given the affinity of the concept of Crimes of State to the notion of obligations erga omnes, the concept of jus cogens and crimes under international law (Nuremberg type). Elucidating the differences between these three notions and the concept of Crimes of State offered a further refinement to our understanding of the concept.

Introduction

3

Theme 3 — The Construction of a Differentiated Order de lege ferenda and the Concept of Crimes of State within such a Construction This theme was introduced by a paper presented by Professor Graefrath which may be found in Part II. The discussion revolved around the following premise. Even if existing international law has moved away from a homogeneous view of wrongful acts and state responsibility towards a differentiated regime, it is clear that such a movement is still fragmentary, partial and replete with lacunae. Article 19 cannot be seen as mere codification. It has, beyond doubt, an element of progressive development. The discussion sought therefore to elucidate the consequences of introducing such a concept. This indeed is the title we have given to that part of the discussion in Part III of this volume which touches on this issue. Theme 4 — The Conditions for, and Viability o f , the New Concept in the World Order This theme was introduced by a paper presented by Professor P. M. Dupuy. In this part of the discussion we were mainly concerned to investigate the problems of actuating the concept of Crimes of State in the current world order. The discussion of Themes 2 and 3 became fused in the context of the conference. The focal points of the discussion were the following: i. what measures may the "victim" state adopt vis-ä-vis the perpetrator of a crime of state and in particular may the victim adopt punitive sanctions regardless of the willingness of the offending state to make reparations? ii. what measures, if at all, may states which are not "directly" affected, adopt vis-a-vis the perpetrator? iii. in the latter case, must there be a collective decision-making procedure as a condition for triggering reactions by "non directly" affected states? iv. what meaning is to be given to the notion of a wrongful act affecting "the international community as a whole" which forms part of the definition of a crime of state and may also be important for its operationalization. Obviously these were only the principal issues. There were many others. In Part IV of this volume we reproduce a few general overviews of the topic presented by some of the participants touching on all issues. In the period between the discussion and the editing and preparation of the volume, the International Law Commission continued to debate the issue of Crimes of State with particular reference to some new draft articles presented by Professor Riphagen.

4

Joseph Η. Η. Weiler/Antonio Cassese/Marina Spinedi

Part V of the volume contains a paper by Professor Bruno Simma — International Crimes: Injury and Countermeasures: — Comments on Part 2 of the ILC Work on State Responsibility — which offers an up-to-date analysis of this most recent development of the field. Part VI contains a revised version of the concluding speech given at the conference by Joseph Weiler. Entitled On Prophets and Judges, it attempts to take a distance from the substantive issues and instead to examine some of the jurisprudential differences which distinguish and differentiate among supporters and opponents of the concept of Crimes and State. Part VII contains a comprehensive bibliography on the concept of Crimes of State authored by Marina Spinedi. Finally, in Part VIII we attach, as an annex, all the draft articles on State Responsibility examined and adopted so far by the ILC, as well as the draft articles submitted by special Rapporteur Riphagen in 1982 and 1984. It is the sincere hope of the editors that the different parts of this volume will serve as a primary source for all students of the concept of Crimes of State. One of the participants in the conference, Professor Ted Stein, among the most promising of the new generation of American international law scholars, died shortly after his participation in the conference. We mourn his death. We present the late Ted Stein's contribution to the discussion immediately after the introductory remarks of President Elias in Part III. This volume is based on the belief that the issues underlying the controversy about the concept of Crimes of State and Article 19 of the Draft Articles on State Responsibility of the International Law Commission are of great importance to our understanding of current trends in international law in general and the evolving law of state responsibility in particular. We offer this book as a modest contribution to the ongoing debate. Joseph Η. H. Weiler Ann Arbor and Florence

Antonio Cassese Florence

Marina Spinedi Parma

Part I

Crimes of State: The Legislative History

International Crimes of State The Legislative History M A R I N A SPINEDI

Contents Introduction Part One: United Nations Codification of International Crimes of State Section I: The Origin and Content of Draft Article 19 1. The Distinction Between "Merely Wrongful" and "Punishable" Acts, According to Mr Garcia Amador 2. The Adumbration of the Distinction Between International Crimes and International Delicts in General Assembly and ILC Debates Between 1960 and 1963 3. First Outlines of the Distinction Between International Crimes and International Delicts in ILC Debates Between 1967 and 1970 4. Adoption by the ILC of the First Articles of the Draft and Announcement of its Intention to Provide for the Category of International Crimes in Subsequent Articles. Reactions in the General Assembly 5. Adoption by the ILC of Draft Article 19 which Establishes the Distinction Between International Crimes and International Delicts 6. Notes on Views in the ILC on the Consequences of International Crimes, as Apparent from Discussions in 1979 and 1980 on Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness Section II. The States' Positions on Draft Article 19 1. General Outline of the States' Positions 2. International Crimes and Penal Responsibility of States 3. The Opinions of States on the Drawing of a Distinction Between Categories of Internationally Wrongful Acts According to the Importance of the Obligation Breached 4. The Opinions of States Regarding the Examples of Particularly Serious Internationally Wrongful Acts 5. The Opinions of States Regarding the Forms of Responsibility Attaching to Particularly Serious Internationally Wrongful Acts 6. The Opinions of States Regarding the Subjects Entitled to Implement the Responsibility of a State Author of a Particularly Serious Wrongful Act 7. The Opinions of States Regarding the Settlement of Disputes Concerning International Crimes 8. The Opinions of States Regarding the Formula Used by the ILC to Designate International Crimes

8

Marina Spinedi Section III: Preliminary Work for the Drawing up of Draft Articles on the Consequences of International Crimes 1. Work of the ILC on Part Two of the Draft Articles on State Responsibility 2. The Views of the Special Rapporteur and of the Members of the ILC Concerning the Scope and Structure of Part Two of the Draft Articles 3. The Views of the Special Rapporteur and of the Members of the ILC Relating to the Inclusion in the Draft Articles of the Category of International Crimes 4. The Views of the Special Rapporteur and of the Members of the ILC Concerning the Legal Consequences to be Attached to International Crimes 5. Draft Article 6 on the Consequences of International Crimes Submitted by the Special Rapporteur in 1982. Reactions at the ILC and at the General Assembly 6. Draft Articles 5(e), 14 and 15 on the Consequences of International Crimes Submitted by the Special Rapporteur in 1984. Reactions at the ILC 7. Question of Relationships Between the Draft Articles on State Responsibility, the United Nations Charter and the Draft Code of Offences Against the Peace and Security of Mankind 8. The Question of the Settlement of Disputes Relating to the Existence of an International Crime and to its Legal Consequences Part Two: The Principal Problems Raised by the Concept of International Crimes of States Section I: Problems Relating to the Determination of the Law in Force 1. Does Customary International Law Provide for a Category of Particularly Serious Wrongful Acts to Which it Attaches a Special Regime of Responsibility? 2. Does United Nations Law Provide for a Special Regime of Responsibility for Particularly Serious Wrongful Acts? Section II: Problems Relating to Codification 1. Should International Law in Force not Provide for a Special Regime of Responsibility Attaching to Particularly Serious Wrongful Acts, what Regime Within the Context of the Progressive Development of International Law Could be Established in the Draft Articles? 2. Is it Advisable to Introduce into the Draft Articles the Category of International Crimes? 3. Is the Inclusion in the Draft Articles of the Category of International Crimes Advisable only if a System for the Compulsory Settlement of Disputes Is to Be Instituted? Section III. The Concept of International Crimes of State and Related Concepts 1. What Relationship Exists Between the Concept of International Crimes of State and That of Norms of Jus Cogens? 2. What Relationship Exists Between the Concept of International Crimes of State and That of Obligations Erga Omnes? 3. What Relationship Exists Between the Concept of International Crimes of State and That of Crimes Under International Law?

The Legislative History

9

Introduction In 1976 the International Law Commission unanimously adopted, on first reading, Article 19 of the Draft Articles on State Responsibility, worded as follows:

1. 2.

3.

4.

Article 19 International Crimes and International Delicts An act of a State which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached. An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime. Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from: (a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression; (b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination; (c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid·, (d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas. Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict.

Very different, indeed conflicting opinions have been expressed on this draft article, both by representatives of the States and by commentators. These divergences are sometimes the expression of real contrasts regarding the content of the rules in force in respect of State responsibility and the advisability of amending them de jure condendo. Often, however, the divergences are because there are different ideas on what the Commission meant by drawing the distinction between international crimes and international delicts, and especially on the consequences it intended to link to commission of such acts. Not uncommonly, the same opinions concerning the consequences of internationally wrongful acts are voiced by those who criticize the distinction drawn by the Commission in Draft Article 19 and those who defend it. Conversely, among those who support the Commission's decision to provide for a special category of particularly serious internationally wrongful acts, differing views exist concerning the consequences to be linked to such acts. These misunderstandings are largely due to the fact that the Commission has not yet (at the date of writing, September 1984) worked out the articles of the Draft that concern forms

10

Marina Spinedi

of responsibility resulting from the internationally wrongful acts it calls international crimes and not all the commentators have examined the preparatory work done in this respect by the Commission. It has thus appeared useful to recall — before the Conference begins to discuss whether the distinction drawn in Draft Article 19 is in line with the international law in force and, if not, whether such a distinction ought de jure condendo to be provided — how and why the Commission reached the adoption of this Draft Article, what it said or did not say about the distinction drawn and the consequences it intends to link with this distinction. Part One of this Working Document, therefore, will be devoted to an historical review of the UN codification work on international crimes. Section I will look at the origin of Draft Article 19, illustrate its content and try to establish which were the views of the International Law Commission's members, when they adopted the Draft Article, as concerned the consequences to be attached to the distinction made therein between international crimes and international delicts. Section II will set out the reactions of States (as apparent from the speeches by government delegates to the Sixth Committee of the General Assembly and the written observations submitted by Governments). Section III will examine the preliminary work done since 1980 by the International Law Commission in order to draw up the draft articles on the consequences of international crimes. Special attention will be paid to the draft articles on this item submitted by the special rapporteur, Mr. Riphagen (Draft Article 6 submitted in 1982; Draft Articles 5 (e), 14 and 15 submitted in 1984). Part Two of the Working Document will point out the main problems raised by the introduction in the Draft Articles on State Responsibility of the concept of international crimes of State, problems that it would be interesting to discuss during the Conference. Part One

United Nations Codification of International Crimes of State Section I The Origin and Content of Draft Article 19 1. The Distinction Between "Merely Wrongful" and "Punishable" According to Mr Garcia Amador

Acts,

The question of the need for drawing a distinction between two categories of internationally wrongful acts, in view of the special seriousness of some

The Legislative History

11

of these acts, and of laying down two different corresponding regimes of responsibility was raised from the outset in the International Law Commission's work concerning the codification of State responsibility. In 1956 Mr Garcia Amador, first special rapporteur on State Responsibility, brought his first report before the Commission. He stated that international law distinguished two categories of internationally wrongful acts: those "merely wrongful" and those "punishable". Among the latter he mentioned crimes against humanity, genocide and some of the acts included by the Commission in its Draft Code of Offences against the Peace and Security of Mankind. He also asked the Commission whether it was appropriate to take account of this distinction in the work of codification to be undertaken 1 . The Commission at the time decided against this solution 2 . It should however be stated that the analogy between the distinction drawn by Mr Garcia Amador and the one subsequently drawn by the Commission in Draft Article 19 is more apparent than real. In speaking of "punishable" acts, Mr Garcia Amador had in mind acts (those generally called "crimes under international law") done by individuals who are organs of the State and are acting as such, with the commission of which international law links the following consequences: the individuals can be (and sometimes must be) pursued and punished by States other than those of which they are organs even though they have acted as State organs. Probably (he does not say so explicitly), Mr Garcia Amador saw in the punishment of the individual a form of responsibility of the State of which the individual is an organ. The special rapporteur further asked the Commission whether this distinction between "merely wrongful" and "punishable" acts ought to have an effect on the content of the obligation to make reparation incumbent on the State responsible for the wrongful act. In his opinion the obligation to "make reparation" often had — even in international law before the Second World War — a more or less marked repressive aim. The point was whether it was appropriate or not to stress the punitive aspects of reparation in the event of infringement of certain obligations. In this connection, he suggested that the State organ that had engaged in the act be obliged to pay "punitive" damages. These proposals did not meet with favour from the Commission. Those of its members who spoke on the issue felt that it was not appropriate to

1

2

Yearbook of the International Law Commission (hereinafter ILC Yearbook), 1956, vol. II, pp. 182 — 83, 211—13. See also the bases of discussion Nos. I and VI presented by Mr Garcia Amador {id., pp. 2 1 9 - 2 0 ) . ILC Yearbook, 1956, vol. I, pp. 228, 231, 2 3 7 - 4 2 and 246. In the debate, the question of the existence of wrongful acts by a State which might entail a special, more severe regime of responsibility became mixed with that of the existence of forms of criminal responsibility of States. On the last point, see also the debate that took place in 1957 (ILC Yearbook, 1957, vol. I, pp. 157, 1 6 9 - 7 1 ) .

12

Marina Spinedi

deal in the context of codification of State responsibility with the matter of punishment of State organs. The special rapporteur accepted this opinion3. He submitted to the Commission a Draft which had been limited to the question of State responsibility for injuries to aliens. It stated that for the purposes of the Draft, the international responsibility of the State involves the duty to make reparation for damage resulting from the breach of the international obligations of the State. No mention was made of cases where the organ of the State might (or should) be punished4. In succeeding years the Commission, busy with codification of other areas, did not find time for further consideration of the Draft prepared by Mr Garcia Amador. There was therefore no further discussion in this context of the distinction between more or less serious internationally wrongful acts of a State and corresponding regimes of responsibility. 2. The Adumbration of the Distinction Between International Crimes and International Delicts in General Assembly and ILC Debates Between 1960 and 1963 It was in the debate which took place from 1960 to 1963 in the International Law Commission and in the Sixth Committee of the General Assembly on the method to be followed in codifying State responsibility that the need became apparent to draw the distinction subsequently embodied in Draft Article 19. In I960, during consideration of the report of the International Law Commission on the work of its 12th session, the delegations of the Soviet Union and other Socialist countries to the Sixth Committee of the General Assembly (15th Session) very sharply criticized the Draft Articles drawn up by Mr Garcia Amador. The criticisms related not only to the content of the rules formulated in the Draft, but also to the decision to codify only the rules on responsibility for the violation of obligations concerning the treatment of aliens. These delegations believed that it was urgent to codify the principles governing the responsibility of States for violations of fundamental principles of international law. Mention was made in this context of violations of obligations in connection with the maintenance of international peace and security, aggression and other infringements of territorial integrity, independence and sovereignty of States, and of the right of peoples to self-determination5. This thesis was again set forth in 3 4

5

ILC Yearbook, 1957, vol. II, p. 105. The whole text of the preliminary draft is published in the ILC Yearbook, 1958, vol. II, pp. 71 — 73. See esp. Articles 1 and 24. See speeches by the delegations of the U.S.S.R. (A/C.6/SR.651, paras. 9 — 10 and SR.657, para. 31), Roumania (SR.653, paras. 9 - 1 0 ) , Hungary (SR.654, paras. 1 2 - 1 3 ) , Chechoslovakia (SR.655, para. 11), the Ukraine (SR.657, para. 20), Bulgaria (SR.658, para. 33), Albania (SR.662, para. 2) and Byelorussia (SR.662, para. 13).

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1961 and 1962 by the same delegations and by some delegations from Third

World countries^\

Faced with these criticisms, the International Law Commission decided to embark on a thorough consideration of the path to follow in codifying State responsibility. A Sub-Committee was set up 7 . There were two opposing positions. The first position, in accordance with the approach of Mr Garcia Amador, suggested codifying both the rules of State responsibility in connection with injuries caused to aliens, and the "primary" rules containing the obligations concerning the treatment of aliens8. The other position called for codification of the rules on State responsibility for violation of the most important obligations in international law, particularly those dealing with the maintenance of international peace and security9. In addition to these two positions, a third was put forward: it recommended codification of the rules on State responsibility in general, and not solely for violation of obligations in a particular sector. The codification, however, should concern only the rules on responsibility; in other words, the rules defining the conditions for the existence of an internationally wrongful act and its consequences (so-called "secondary" rules), to the exclusion of the rules that lay down obligations the violation of which may be the cause of responsibility (so-called "primary" rules) 10 . The majority of the Commission soon joined in supporting this position 11 . As far as 1961 is concerned, see speeches by the delegations of the following countries: U.S.S.R. (A/C.6/SR.717, para. 36), Hungary (SR.718, para. 14), the Ukraine (SR.723, para. 15), Chechoslovakia (SR.723, para. 24), Byelorussia (SR.724, para. 5), Bulgaria (SR.724, para. 40), Poland (SR.725, paras. 2 and 7), Roumania (SR.726, para. 22), Mongolia (SR.729, para. 1). For 1962 see speeches by the delegations of the following countries: Chile (A/C.6/SR.737, para. 22), U.S.S.R. (SR.738, paras. 8 - 9 ) , Czechoslovakia (SR.739, para. 8), Cambodia (SR.740, para. 15), Poland (SR.740, para. 28), the Ukraine (SR.741, para. 29 and SR.745, para. 14), Mongolia (SR.742, para. 3), Algeria (SR.742, para. 13), Roumania (SR.742, para. 22), Hungary (SR.745, para. 49) and Bolivia (SR.746, para. 23). 7 The debate began in 1961 during discussion on the Commission's future work ( I L C Yearbook, 1961, vol. I, pp. 2 0 6 - 2 3 ) ; it continued and expanded in 1962 {id., 1962, vol. I, pp. 2—45 and 282—84). At the latter session, the Commission set up a subcommittee to make recommendations on the scope of the subject and the method of approaching it. At the end of its work the sub-committee approved a report (id., 1963, vol. II, pp. 227 — 28) which was considered and adopted by the Commission in 1963 (id., 1963, vol. I, pp. 7 9 - 8 6 ) . 8 This position was supported particularly by Mr Briggs (ILC Yearbook, 1962, vol. I, p. 9 and 1963, vol. II, p. 231) and Mr Jimenez de Arechaga (id., 1962, vol. I, pp. 2 5 - 2 6 and 1963, vol. II, p. 231). 9 See Mr Zourek (ILC Yearbook, 1961, vol. I, pp. 2 1 6 - 2 1 7 and 222) and, esp., Mr Tunkin (id., 1961, vol. I, pp. 2 2 1 - 2 2 ; 1962, vol. I, pp. 16, 29, 37; 1963, vol. I, p. 82 and vol. II, pp. 233—34). 10 See Mr Verdross (ILC Yearbook, 1962, vol. I, pp. 3 and 27), Mr Yasseen (id., 1962, vol. I, pp. 1 0 - 1 1 and 36; 1963, vol. II, pp. 2 2 9 - 3 0 ) and, esp., Mr Ago (id., 1962, vol. I, pp. 1 5 - 1 6 , 2 8 - 2 9 , 35; 1963, vol. II, pp. 232, 234, 2 5 2 - 2 5 3 ) . " See debates that took place in 1963 in the Sub-Committee ( I L C Yearbook, 1963, vol. II, pp. 229 — 34) and then in the Commission (id., 1963, vol. I, pp. 79 — 86). 6

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Those who had asked for codification of rules on responsibility for violation of the most important obligations in international law agreed to begin codification of the general rules on State responsibility, without going into the content of the "primary" obligations: they insisted, however, in the need to codify as a second step, the rules on responsibility applicable in the event of violation of the more important obligations they had mentioned. The chief representative of this position, Mr. Tunkin, stressed in this connection that the development that had taken place in recent years in international law — particularly the introduction of the ban on the threat or use of force in international relations — had affected the area of State responsibility. The responsibility resulting from violation of obligations essential for the maintenance of international peace and security did not have the same content as that resulting from other wrongful acts 12 . Mr Ago, the chief representative of the position seeking to codify the "secondary" rules separately from the "primary" ones, stated that the Commission ought not in codifying State responsibility to fix the content of the rules laying down the most important obligations for the maintenance of peace. He recognized, though, that the development that had taken place in this area might have had effects in the area of responsibility, and that the Commission ought to consider this. It ought in particular to look into whether it was appropriate, regarding the nature of the rules violated, to draw a distinction between wrongful acts in respect to the forms of responsibility they might engage 13 . The Commission reached agreement along these lines. The Sub-Committee's report recommended that the Commission "give priority to the definition of general rules governing the international responsibility of the State". It also asked that "careful attention ... be paid to the possible repercussions which new developments in international law may have had on responsibility" 14 . Among the points to be considered, indicated in the programme of work proposed by the Sub-Committee, appears the following: "possible distinction between international wrongful acts involving merely a duty to make reparation and those involving the application of sanctions. 12 13

14

ILC Yearbook, 1962, vol. I, pp. 29 and 37. Mr Ago indicated that in his opinion the evolution that had taken place in the primary rules on the maintenance of peace had not been followed by a comparable evolution in the area of responsibility. Mr Ago went on: "Of course some changes had occurred and would have to be studied. . . ./f/or instance . . . a clearer distinction would have to be drawn today between acts which called for reparation and torts which called for sanctions. The distinction might be in relation to the nature of the rule violated. There were probably rules whose breach would call only for reparation, but there were others whose breach called not only for reparation but also for sanctions." {ILC Yearbook, 1962, vol. I, p. 35). See also Mr Ago's speech to the Sub-Committee {ILC Yearbook, 1963, vol. II, p. 234) and Mr Ago's working paper {id., p. 254). ILC Yearbook, 1963, vol. II, p. 228.

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Possible basis for such a distinction" 15 . The Commission approved the Sub-Committee's report unanimously. Since Mr. Garcia Amador was no longer a member of the Commission, it appointed Mr Ago as special rapporteur on State responsibility 16 . The Commission report taking over the Sub-Committee's conclusions jvas considered by the General Assembly at its 18th session (1963). All delegations who spoke on the matter stated their agreement with the way the Commission proposed to approach the study of State responsibility except for the delegation from the United States. This delegation would have preferred codification of the rules on State responsibility for injuries caused to aliens 17 . Those delegations that at previous sessions had called for the codification of State responsibility to deal with responsibility for violation of fundamental principles of international law declared their agreement to begin by codifying general rules on State responsibility. They stressed, however, that such codification should establish the consequences of the most serious wrongful acts, such as acts of aggression and acts tending to prevent the independence of colonial countries or the free employment by peoples of their natural resources 18 .

3. First Outlines of the Distinction Between International Crimes and International Delicts in ILC Debates Between 1967 and 1970 The International Law Commission, occupied in codifying other subjects, had no opportunity in the immediately succeeding years to elaborate the Draft Articles on State Responsibility. It was not until 1973 that it began consideration of the Draft Articles drawn up by the new special rapporteur. At the 1967, 1969 and 1970 sessions the Commission had, however, discussed a number of general problems concerning State responsibility, and reached important conclusions for the problem that interests us 19 . Since years had passed and most members of the Commission were different, Mr Ago asked the Commission if it confirmed the guidelines it had given him in 1963. The answer was yes. All Commission members stated that it 15 16 17 18

19

ILC Yearbook, 1963, vol. II, p. 228. ILC Yearbook, 1963, vol. II, p. 86. For the speech by the American delegation, see doc. A/C.6/SR.784, para. 40. See speeches by the delegates of Roumania (A/C.6/SR.783, para. 28), the Ukraine (SR.784, para. 14), the U.S.S.R. (SR.787, para. 17), Czechoslovakia (SR.787, para. 29), Bulgaria (SR.788, para. 6), Hungary (SR.789, para. 13), Algeria (SR.789, para. 32). The same line was taken by the delegates of Indonesia (SR.785, para. 11) and Morocco (SR.792, para. 19). See ILC Yearbook, 1967, vol. I, pp. 225-228; 1969, vol. I, pp. 1 0 4 - 1 7 , 2 3 9 - 4 2 ; 1970, vol. I, pp. 175 — 92, 209—27. These debates took place on presentation of a working document and Mr Ago's first and second reports (appearing in the ILC Yearbook, 1967, vol. II, pp. 3 2 5 - 2 7 ; 1969, vol. II, pp. 1 2 5 - 5 6 ; 1970, vol. II, pp. 177-97).

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was necessary not to codify "primary" rules, but only rules relating to responsibility. They also agreed to begin by codifying general rules on responsibility. Almost all, however, stressed the need to go on to consider whether the general rules presented special features in application to certain categories of wrongful acts. The most frequently mentioned category was that of violations of obligations relating to the maintenance of peace20. In 1969, at the close of debate on this point, Mr Ago stated: The members of the Commission seemed to be unanimous in recognizing the need first to establish the basic conditions of State responsibility and then to determine its consequences. A twofold distinction then had to be made relating, first, to the importance of the obligation violated and, secondly, to the gravity of the violation. The consequences of a wrongful act certainly depended on the nature of the obligation violated. Similarly, there could be different degrees of gravity in the violation itself, irrespective of the importance of the obligation violated, and there again the consequences would not be the same. In that case, it would be necessary to go back to the primary rules and, without defining them precisely, to classify them according to the consequences of their breach 21 .

The Commission agreed. In its report on that session submitted to the General Assembly, it indicated that the first part of the Draft Articles that it would prepare should establish the conditions of the existence of an internationally wrongful act of a State. The second part should then establish the consequences of this act; i.e., the definition of the various forms and degrees of responsibility. The report states: To that end, the Commission was in general agreement in recognizing that two factors in particular would guide it in arriving at the required definition: namely, the greater or lesser importance to the international community of the rules giving rise to the obligations violated, and the greater or lesser seriousness of the violation itself 22 .

The special rapporteur and the Commission did not further change their position on this point. We meet with it again in Draft Article 19. The debate that took place in 1967 — 1970 is important for one further aspect. Those were the years when Commission members began to indicate their opinion on the main differences between the regime of responsibility resulting from the most serious wrongful acts and that of the responsibility appropriate for other wrongful acts.

20

21 22

See speeches by Mr Yasseeti (ILC Yearbook, 1969, vol. I, p. 107), Mr Ramangasoavina {id., p. 107), Mr Barto! {id., p. 112), Mr Ushakov {id., pp. 1 1 2 - 1 3 ) , Mr Ustor {id., pp. 1 1 3 - 1 4 ; 1970, vol. I, p. 209), Mr Eustathiades {id., p. 115) and Mr Tabibi {id., 1970, vol. I, p. 183). Other points mentioned were violations of the right of peoples to self-determination, to exploit their natural resources and to be free of the most serious human rights violations such as genocide and slavery. ILC Yearbook, 1969, vol. I, p. 241. ILC Yearbook, 1969, vol. II, p. 233.

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As has been said, during the discussions of 1961 —1963, some Commission members had already referred in this connection to the different relationship in each of the cases between the form of responsibility represented by the obligation to make reparation for injuries caused, and that represented by the application of a sanction. This idea reappeared in 1969. It was affirmed that in the case of less serious wrongful acts, State responsibility took the form of the obligation to make reparation. Only if the State also violated that obligation could sanctions against it be adopted. On the other hand, in the case of the most serious wrongful acts, sanctions might be adopted immediately against the State committing the violation, as well as reparation claimed from it 23 . Furthermore, concerning forms of responsibility, it was also stated that there are differences in the content of the sanctions that might be adopted in each case. Thus, Mr Ushakov stressed that the adoption of military sanctions was possible only in the event of wrongful acts representing the breach or threat of a breach of the peace24. In the same period between 1967 and 1970, one other important difference emerged. This concerned the subjects that might implement responsibility of the State guilty of the wrongful act. In 1967, Mr Tammes asked the special rapporteur to study the matter of the "active" subject in the responsibility relationship, and more specifically establish whether there are cases where subjects other than the one directly injured may implement the responsibility of the guilty State 25 . Other Commission members joined Mr Tammes's position. They requested a study of the admissibility in international law of actions of the type of the actio publica of Roman Law and that of collective sanctions 26 . A link was soon established between the category of wrongful acts authorizing even subjects not directly injured to implement the responsibility of the author of the violation, and the category of the particularly serious wrongful acts threatening the fundamental interests of the international community. In relation to this latter category of wrongful acts, Commission members began to wonder whether the relationship of responsibility originating in the wrongful act might possibly be with the entire international community. Some gave an affirmative answer to this question 27 . In its report to the Gen23

24 25 26

27

See speech by Mr Ago (ILC Yearbook, 1969, vol. I, p. 241). The same idea was again illustrated by Mr Ago in 1970 {id., 1970, vol. I, p. 177). ILC Yearbook, 1969, vol. I, p. 112. ILC Yearbook, 1967, vol. I, p. 225. See also id., 1969, vol. I, p. 110. See speeches by Mr Ushakov (ILC Yearbook, 1967, vol. I, p. 225), Mr Ustor and Sir Humphrey Waldock (id., p. 227). In 1969, Mr Ushakov, quoting Mr Tunkin, stated that: "violations which constituted a breach or a threat of a breach of the peace affected the rights of all States. Hence, States other than the State directly injured might act in such cases to compel the offending State to abide by international law" ( I L C Yearbook, 1969, vol. I, p. 112). In 1970, Mr Sette Camara, Mr Yasseen and Mr Ustor (id., 1970, vol. I, pp. 184, 190 and 210 respectively) stated that there were serious violations that give rise to a

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eral Assembly on its 1969 session, the Commission indicated that it intended to consider separately: the cases in which responsibility is reflected only in the establishment of a legal relationship between the defaulting State and the injured State and the cases in which, on the contrary, a particularly serious offence might also give rise to the establishment of a legal relationship between the guilty State and a group of States, or even between that State and the entire international community 28 .

4. Adoption by the ILC of the First Articles of the Draft and Announcement of its Intention to Provide for the Category of International Crimes in Subsequent Articles. Reactions in the General Assembly A s has been said, the International Law Commission began in 1 9 7 3 to prepare the Draft Articles on State Responsibility. A s far as the problem that interests us is concerned, it took f r o m the outset, consistently albeit prudently, the path it had traced out f r o m 1962 — 1963. It did not in the first Articles of the Draft draw a distinction between categories of internationally wrongful acts. It took care, though, to work out formulas for these Articles that would not conflict with such a distinction should it decide to provide in subsequent articles f o r a distinct category of particularly serious w r o n g f u l acts. Furthermore, it stated the part and chapter of the Draft which might be used to insert the Article providing for such a category of w r o n g f u l acts. In 1 9 7 3 the Commission adopted, on first reading, the following Articles, among others: Article 1 Responsibility of a State for its Internationally Wrongful Acts Every internationally wrongful act of a State entails the international responsibility of that State. Article 3 Elements of an Internationally Wrongful Act of a State There is an internationally wrongful act of a State when: (a) conduct consisting of an action or omission is attributable to the State under international law; and (b) that conduct constitutes a breach of an international obligation of the State.

28

relationship of responsibility with the entire international community. Doubts were expressed in this connection, however, by Mr Reuter and Mr Rosenne {id., pp. 187 — 88 and 220 respectively). For Mr Ago, there was no doubt that in the event of infringements affecting the fundamental interests of the international community, a relationship of responsibility might be established between the guilty State and an organized collectivity such as the United Nations. The relationship would be reflected by subjecting the State committing wrongful acts to sanctions adopted by the organization or its members on the basis of a collective decision. On the other hand, he reserved his position regarding the existence of wrongful acts giving rise to a relationship of responsibility with the generality of States taken ut singuli {id., 1969, vol. I, p. 241 and 1970, vol. I, p. 177, and vol. II, pp. 184-85). ILC Yearbook, 1969, vol. II, p. 233.

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In the commentary accompanying Article 1, the Commission declared that it was aware of the fact that there were differences of opinion as to the legal situations that arise in the legal relationships established as a result of the internationally wrongful acts (Obligation to make reparation? Application of a sanction? Both?) and as to the active subjects of these relationships (Only the injured State? Or else also international organizations? Other States? All States?). It announced its intention to deal with these questions when drawing up the part of the Draft dealing with the content and forms of responsibility 29 . As far as Article 1 was concerned, it emphasized that by using the term "international responsibility", it intended to cover: every kind of new relations which may arise, in international law, from the internationally wrongful act of a State, whether such relations are limited to the offending State and the directly injured State or extend also to other subjects of international law, and whether they are centered on the duty of the guilty State to restore the injured State in its rights and repair the damage caused, or whether they also give the injured State itself or other subjects of international law the right to impose on the offending State a sanction admitted by international law 30 .

The Commission also stated that if in Article 1 it had not distinguished between "various categories of wrongful acts and the effects of their different character on the new relationships which are established as a result of those acts" it was only because it felt that Article 1 of the Draft should state a basic principle "capable of encompassing in itself all the various possible cases". Other Articles could go on to draw such distinctions 31 . To avoid any doubt as to its intentions on this point, the Commission indicated that in chapter III of the first part of the Draft, dealing with the various aspects of the breach of an international obligation, it would deal with the problems of determining distinct categories of breaches of international obligations. It added that the question would then arise whether it was necessary today: to recognize the existence of a distinction based on the importance to the international community of the obligation involved, and accordingly whether contemporary international law should acknowledge a distinct and more serious category of internationally wrongful acts, which might perhaps be described as international crimes32.

29

30 31 32

ILC Yearbook, 1973, vol. II, p. 175. The various theses regarding the content of the responsibility relationship and its active subject had been illustrated in Mr Ago's third report. (See ILC Yearbook, 1971, vol. II, pt. 1, pp. 2 0 6 - 1 1 ) . ILC Yearbook, 1973, vol. II, p. 175. Id., p. 175. Id., p. 172. The debate on the need to provide for a separate category of particularly serious wrongful acts was very short. See speeches by Mr Ago (ILC Yearbook, 1973, vol. I, pp. 5 — 6 and 14), Mr Barto! {id., p. 7), Mr Hambro (id., p. 7), Mr Reuter {id., p. 8), Mr Castaneda {id., p. 11), Mr Ushakov {id., p. 13). Except for Mr Reuter, they were all on the whole in favour of introducing the category.

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For the first time, the Commission was referring to the notion of international crimes in its report to the General Assembly. What were the reactions of the members of the Sixth Committee of the General Assembly to the intention so clearly manifested by the International Law Commission to provide for a distinct category of particularly serious internationally wrongful acts, to be called international crimes? The representatives of the countries in the Western group maintained a prudent silence. None of them spoke on the issue during consideration of the Commission's report on the 1973 session. It was not until after the Commission adopted the Draft Article 19 that their views on mentioning in the Draft a category of particularly serious wrongful acts became known. The representatives of the Socialist countries and some Third World countries showed a different attitude. From 1969 (date of submission of Mr Ago's first report) to 1975 (year before approval of Draft Article 19) the representatives of these States insisted during consideration of the Commission's reports that the latter should deal specially with the category of particularly serious wrongful acts. They therefore supported the idea of drawing a distinction between categories of wrongful acts33. Some would even have liked to see this distinction drawn as early as Article 3 34 . As regards the wrongful acts that ought to be included in the category of particularly serious acts, these representatives mentioned in the first place, as they had already in 1960—63, aggression and other illicit uses of force, such as use of force to prevent colonial peoples from gaining independence and pillaging the natural resources of peoples. In addition, they mentioned areas unmentioned in 1960 — 63: genocide, apartheid, and race discrimination. Some also referred to crimes against peace, crimes against humanity and war crimes. The representatives of the States concerned did not, however, supply many indications regarding the content of the provisions for the responsibil33

34

See speeches by the representatives of the following countries: Byelorussia (A/C.6/ SR.1326, para. 34; 1398, paras. 2 6 - 2 7 ; 1491, para. 9; 1540, para. 31), Bulgaria (SR.1191, para. 29; 1549, para. 7), Cuba (SR.1108, para. 27; 1542, para. 16), Cyprus (SR.1550, para. 12), Chechoslovakia (SR.1488, para. 17; 1546, para. 3), German Democratic Republic (SR.1399, para. 21; 1486, para. 57), India (SR.1404, para. 2), Iraq (SR.1104, para. 9; 1397, para. 7), Pakistan (SR.1492, para. 80), Roumania (SR.1260, para. 32; 1405, paras. 1 6 - 1 7 ; 1486, para. 40), Syria (SR.1491, para. 45; 1548, para. 53), Ukraine (SR.1256, para. 37; 1400, para. 11; 1542, para. 1), U.S.S.R. (SR.1105, para. 10; 1188, para. 54; 1260, para. 58; 1406, para. 13; 1489, para. 35). It should further be stressed that some States' representatives established a link between State responsibility and matters of the maintenance of international peace and security. See positions taken by the following States' delegates: Greece (SR.1261, para. 12), Jordan (SR.1260, para. 23), Nicaragua (SR.1549, para. 16). See speeches by the delegates of Byelorussia (A/C.6/SR.1540, para. 31) and Chechoslovakia (SR.1546, para. 3).

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ity that ought to attach to these wrongful acts. The delegates from Iraq and Byelorussia affirmed that in case of international crimes the responsibility was established even vis-a-vis subjects not directly injured 35 , and the delegate of the German Democratic Republic mentioned the application of sanctions36. The others confined themselves to affirming that provision ought to be made for particularly severe forms of responsibility. 5. Adoption by the ILC of Draft Article 19 which Establishes the Distinction Between International Crimes and International Delicts In 1976 the Commission began drawing up the articles in chapter III of the Draft dealing with the breach of an international obligation. As it had announced, it raised here the question whether a distinction should be drawn between different categories of wrongful acts. It asked in the first place whether different categories of wrongful acts ought to be distinguished in respect of the origin of the obligation violated (custom, treaty, etc.), and answered in the negative37. In its opinion, the fact that the obligation breached was established, for example, by a customary rule or by a treaty provision did not, as such, justify different legal consequences for the State committing the breach. There was therefore no need for a distinction between different types of internationally wrongful acts in this connection. The Commission went on to consider the same question with respect to the subject-matter of the obligation breached, and more specifically, with respect to the importance of the obligation breached for the international community38. The special rapporteur firmly stressed the need to draw such a distinction39. According to Mr Ago, since the end of the Second World War, there had arisen in international law a growing tendency to single out among international obligations a restricted set of obligations. Respect for these obligations was essential to safeguard fundamental interests of the international community as a whole. These obligations were subject to 35

36 37

38

39

The delegate from Iraq spoke of responsibility toward the international community as a whole (A/C.6/SR.1397, para. 7). The delegate from Byelorussia spoke of responsibility toward other States or toward international organizations (SR. 1398, para. 27). See also speeches by the delegates from India (SR.1404, para. 2) and German Democratic Republic (SR. 1539, para. 2). A/C.6/SR.1539, para. 2. See Draft Article 17 and the accompanying commentary, in particular points (26) and (27) {ILC Yearbook, 1976, vol. II, pt. 2, pp. 7 9 - 8 7 ) . For the debate in the Commission, see ILC Yearbook, 1976, vol. I, pp. 7 — 19, 55—91, 239-53, 297-99. See Fifth Report on State Responsibility submitted by Mr Ago (ILC Yearbook, 1976, vol. II, pt. 1, pp. 24—54) and his speeches in the debate (id., 1976, vol. I, pp. 8, 55-61).

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different rules from those applying to other obligations. Mr Ago recalled in this context the formal distinction in international law of a category of rules (called peremptory norms or rules of jus cogens) that could not be derogated from by special agreement. He also recalled the development of the principle of the punishability of the organ of the State whose conduct constitutes the breach of certain particularly important international obligations of the State. One example was the obligation not to commit genocide or not to wage a war of aggression. It was inconceivable that this trend toward differentiation of the rules of international obligations on the basis of the importance attached by the international community to their subjectmatter would not have been reflected in the area of State responsibility. Mr Ago went on to consider the provisions of the United Nations Charter attaching specific consequences to the breach of certain particularly important obligations, notably the ban on the use of force in international relations. He analyzed relevant resolutions of the General Assembly, the positions expressed by States at the United Nations, international case law, in particular the International Court of Justice's ruling in the Barcelona Traction Light and Power Company, Limited, case and recent doctrine. He concluded that international law had come to attach special responsibility to the breach of certain obligations deemed to be essential to the safeguarding of fundamental interests of the international community. The Commission could not ignore recent developments in international law: it should indicate in the Draft Articles that the breach of certain obligations with a particularly important object represented an internationally wrongful act of a kind different from others, and involved a special responsibility. Almost all members of the Commission immediately declared their agreement with the special rapporteur, of the 23 members who spoke on the point, only three expressed reservations40. They did not dispute the fact that contemporary international law attached to certain particularly serious wrongful acts different consequences from those arising from all other wrongful acts. They only doubted the usefulness of dealing with these special responsibility rules in the Draft Articles the Commission was engaged in drafting. Despite the doubts expressed, these members did not, 40

The twenty-three members in favour of the distinction were Mr Yasseen {ILC Yearbook, vol. I, pp. 10, 6 2 - 6 3 ) , Mr Bedjaoui {id., pp. 1 1 - 1 2 , 80 - 82), Mr Tabibi {id., pp. 61 — 62), Mr Tammes {id., pp. 63 — 64), Mr Hambro {id., pp. 64—65), Mr Calle y Calle {id., pp. 65 — 66), Mr Sette Camara {id., pp. 67 — 68), Sir Francis Vallat {id., pp. 68—69), Mr Sahovic {id., pp. 69—70), Mr Martineζ Moreno {id., pp. 70—71), Mr Ushakov {id., pp. 71 —73), Mr Ramangasoavina {id., pp. 75 — 76), M r Q u e n t i n - B a x t e r {id., pp. 78—80), Mr Rossides {id., 8 2 - 8 3 ) , Mr Ustor {id., pp. 8 3 - 8 4 ) , Mr El-Erian {id., pp. 8 5 - 8 7 ) , Mr Bilge {id., pp. 8 7 - 8 8 ) , Mr Castaneda {id., pp. 2 4 0 - 4 3 ) , Mr Pinto {id., pp. 245 - 46), Mr Njenga {id., pp. 246 — 47). The three members who expressed reservations were Mr Kearney {id., p. 13, 1 7 - 1 8 , 7 6 - 7 8 ) , Mr Tsuruoka {id., p. 78) and Mr Reuter {id., p. 245).

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however, oppose the view of the majority: Draft Article 19, embodying the distinction between categories of internationally wrongful acts on the basis of the subject-matter of the obligation breached, was adopted unanimously 41 . (a) The Content of Draft Article 19 The first problem the Commission was faced with after having decided to single out among internationally wrongful acts a category of particularly serious ones, was that of choosing the method to designate which wrongful acts came within this category. Should an exhaustive list of these acts be drawn up? Should one, as had been done in the Vienna Convention on the Law of Treaties in respect of peremptory norms, confine oneself to indicating the criterion for determining this list? Or should one follow an intermediate path? The way of drawing up an exhaustive list of the most serious wrongful acts in the Draft Article was the one that would most respect the need — stressed by some members 42 — for a formula allowing members of the future Convention to know easily whether a given wrongful act came into the category indicated. The Commission, however, discarded this method for three reasons. In the first place, it would have led to a "rigid" result reflecting the situation at the time of codification; it would not have permitted the rule to be progressively adapted to the future evolution of international law, especially in an area where this evolution was rapid. A wrongful act not now considered to threaten the fundamental interests of the international community as a whole might tomorrow be treated as such by the legal conscience of States; it would be unsatisfactory if the convention adopted had to be constantly amended to bring it into line with developments. Secondly, drawing up a list of acts coming into the category of the most serious wrongful acts would have increased the risk of the Commission's becoming involved, under cover of the codification of the rules on State responsibility, in defining the content of the "primary" obligations whose breach entails State responsibility — something the Commission had always sought to avoid. Thirdly — and this was just as important a reason though less openly stated 43 — it was difficult to reach

41

42 43

ILC Yearbook, 1 9 7 6 , v o l . I, p. 2 5 3 . It should h o w e v e r be noted that M r Kearney, o n e of the members w h o w o u l d h a v e preferred the draft articles n o t t o deal w i t h the special regime o f responsibility f o r international crimes, w a s n o t present w h e n the draft o f A r t i c l e 1 9 was adopted. In particular M r Ustor (see ILC Yearbook, 1 9 7 6 , v o l . I, pp. 8 3 - 8 4 ) . In the c o m m e n t a r y accompanying Article 19, the Commission says that d r a w i n g up an exhaustive list o f international crimes w o u l d h a v e taken t o o m u c h time ( I L C Yearbook, 1 9 7 6 , v o l . II, pt. 2, p. 1 1 9 ) .

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agreement on the complete list of wrongful acts to include in the category indicated 44 . The method of leaving to the "international community as a whole" the task of establishing which wrongful acts to include within the category of particularly serious wrongful acts (/. e., the way taken by the Vienna Convention on the Law of Treaties in determining the peremptory norms) allowed the difficulties mentioned to be avoided. It did not, however, take sufficient account of the need to be able to determine easily whether at a certain moment a given wrongful act, for the purposes of the Draft Articles, was included in the category mentioned. Thus, one could not easily determine whether the act was liable to entail the special responsibility laid down for acts in this category, or whether it was an "ordinary" wrongful act involving less severe responsibility rules. The Commission consequently decided to follow an intermediate road. It would take as a basic criterion the reference to acts that the international community as a whole regards as particularly serious wrongful acts. Then, it would add some concrete indications in order to facilitate the specific determination of the acts in question. To this end, it decided to cite "examples" of these acts in the text of the Draft Articles. The basic criterion is formulated in paragraph 2 of Article 19. It follows from this provision that, for the purposes of the Draft Articles, the violation of an international obligation is to be considered as a wrongful act coming within the category of particularly serious internationally wrongful acts (called "international crimes"), and will in consequence entail the special regime of responsibility to be indicated in the second part of the Draft Articles, if it can be established that the international community as a whole considers this breach a particularly serious wrongful act entailing special responsibility rules. The Commission stated in the commentary to Article 19 the meaning of the expression "recognized by the international community as a whole": It certainly does not mean the requirement of unanimous recognition by all the members of that community, which would give each State an inconceivable right of veto. What it is intended to ensure is that a given internationally wrongful act shall be recognized as an "international crime", not only by some particular group of States, even if it constitutes a majority, but by all the essential components of the international community«.

44

45

For the reasons that induced the Commission to discard the idea of drawing up an exhaustive list of international crimes, see ILC Yearbook, 1976, vol. II, pt. 2, p. 119. ILC Yearbook, 1976, vol. II, pt. 2, p. 119. In the same connection, see the speeches by Mr Ago {id., 1976, vol. I, pp. 251 — 52 and 299). A partly different meaning seems to have been attributed to the expression by some members of the Commission who spoke before Mr Ago. See speeches by Mr Seite Camara (id., p. 246), Mr Njenga (id., p. 246), Sir Francis Vallat (id., p. 248) and Mr Quentin-Baxter (id., p. 249).

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If this is the meaning to be attached to the expression "recognized by the international community as a whole" as used in Article 19, it follows that one may for the purposes of the Draft Articles speak of an international crime only where the States belonging to the Third World group, those belonging to the group of Western countries, and those in the group of Socialist countries and other relevant groups had displayed this conviction. The fact that very many States all belonging to the same group (even if a majority) had affirmed that a breach of a given international obligation be regarded as an international crime would not be enough. Moreover, even where only the States belonging to one given group were opposed to treating the breach as being an international crime, there would be no international crime for the purposes of the Draft Articles. This is a very strict condition which, while not going so far as to call for unanimity, comes very close. According to the special rapporteur, this was a necessary guarantee. He stated: In the absence of such a safeguard, the introduction of the notions of a "peremptory norm" and an "international crime" would not be a genuine advance, but would tend to divide the international community. Some would regard such a guarantee as excessive caution; but he thought it was a matter of common sense, since it was only in that way that the international community could progress towards greater cohesion and unity46.

The basic criterion used in Article 19 to indicate which are the international crimes is, as has been said, identical to that used in Article 53 of the Vienna Convention on the Law of Treaties to designate which are the norms of jus cogens. In contrast with the latter, however, Article 19 supplies further details to facilitate the identification of those wrongful acts that are considered as crimes by the international community as a whole. The first indication is given in paragraph 2 of the Article. It states that there must be a breach of an obligation "essential for the protection of fundamental interests of the international community". Further indications are given in paragraph 3. It indicates the areas of international law more likely to involve obligations whose breach is recognized by the international community as a whole as a crime. These areas are those containing rules aimed at: the maintenance of international peace and security; the safeguard of the right of self-determination of peoples; the safeguard of the human being; and the safeguard and preservation of the human environment. Yet not every violation of an obligation coming under one of the areas mentioned is to be regarded as a crime, but only the "serious" breach of an obligation "of essential importance" for the pursuit of the fundamental aim in question. Paragraph 3 of Article 19 supplies "examples", for each of the areas mentioned, of breaches currently recognized as crimes by the international community as a whole. These 44

ILC Yearbook, 1976, vol. I, pp. 2 5 1 - 5 2 .

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Marina Spinedi

are: aggression, the establishment or maintenance by force of colonial domination, slavery, genocide, apartheid, and massive pollution of the atmosphere or the seas. The breaches just mentioned do not constitute an exhaustive list of wrongful acts to be considered for the purposes of the Draft Articles as international crimes. This appears clearly from the text of the Article ("an international crime may result, inter alia, from ... a serious breach ... such as ...") and has been specifically stressed in the commentary. This states that the Commission in giving these "examples" of international crimes, in no way intended to affirm that international law now in force recognized no other crimes (nor a fortiori that it might not recognize them in future) 47 . To know whether, at a given historical moment, other serious breaches of obligations of essential importance coming into one of the areas indicated (or even into an area outside of these) are to be regarded as international crimes for the purposes of the Draft Articles, one must use the basic criterion set out in paragraph 2: namely, to determine whether the international community as a whole recognizes them as particularly serious wrongful acts entailing a special regime of responsibility. To conclude this point, one may state that the method followed by the Commission in Article 19 to designate wrongful acts coming within the category of international crimes in part resembles — as Mr Bilge pointed out 48 — the one used by the General Assembly in Resolution 3314 (XXIX) to define acts of aggression. That resolution draws up a list of acts that may be defined as "acts of aggression", and states the procedure whereby other acts may be added to the list. As was said, the Commission followed the same method in Article 19. The difference lies in the procedure whereby the list may be augmented. Resolution 3314 submits determination of further acts that may be defined as acts of aggression to the Security Council. Article 19, on the contrary, submits to the international community as a whole the indication of other acts to be termed international crimes. After the Commission had reached an agreement on the method to use to designate international crimes, it had to indicate the areas of international law where obligations were more likely to arise whose breach was currently recognized as a crime by the international community as a whole. Then, it had to supply "examples" of breaches recognized as crimes today. All members of the Commission agreed on mentioning firstly the area of obligations relating to the maintenance of international peace and security (paragraph 3(a) of the Article). Some would even have liked to see the Article give a separate place to this category of obligations in comparison with other categories whose breach also represents an international crime.

47 48

Id., Id.,

1976, vol. II, pt. 2, p. 120. 1976, vol. I, p. 244.

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Thus, according to the special rapporteur it should have indicated that breaches of obligations relating to the maintenance of international peace and security represent the most serious crimes in the legal consciousness of States, and entail very special consequences 49 . This proposal was not adopted by the majority of the Commission, but care was taken to state in the commentary that the regime of responsibility that the Commission proposed to attach to wrongful acts coming within the category of international crimes was not necessarily a uniform regime; it might vary in accordance with the crime 50 . As a specific example of a crime coming within the area of the obligations contemplated here, the special rapporteur had mentioned, in the draft of the article he had submitted to the Commission, the threat or use of force against the territorial integrity or political independence of another State 51 . The majority of the Commission preferred to mention aggression because — as stated in the commentary — it constituted "the most indisputable example, the supreme international crime" 52 . However one should not deduce from the choice made by the Commission that it excluded other breaches of the ban on the threat or use of force from being regarded as international crimes 53 . Did the Commission intend by mentioning aggression to refer solely to aggression involving the use of armed force, or else also to economic aggression? Mr Tabibi had strongly maintained that the notion of aggression included economic aggression, but most other members referred to the definition of aggression contained in General Assembly Resolution No. 3314 (XXIX), thereby indicating their preference for the more restrictive notion 54 . The Commis49

50 51 52

53

54

This was the way taken in the preliminary Draft Article submitted to the Commission by the special rapporteur (ILC Yearbook, 1976, vol. II, pt. 1, p. 54). Mr Castaiieda and Mr El-Erian (ILC Yearbook, 1976, vol. I, pp. 242 and 243 respectively) stated that they would have liked the Commission to follow the same way. ILC Yearbook, 1976, vol. II, pt. 2, pp. 109, 1 1 7 - 1 8 . ILC Yearbook, 1976, vol. II, pt. 1, p. 54. ILC Yearbook, 1976, vol. II, pt. 2, p. 121. See also the explanations given by Mr Ago in connection with the change of example (id., 1976, vol. I, p. 252). In favour of the example as initially formulated by Mr Ago, see speeches by Mr Castaiieda (id., 1976, vol. I, pp. 242, 243) and Mr NJenga (id., p. 246). It should be noted that only Mr Bilge expressly stated that among breaches of peace, only aggression constituted an international crime (ILC Yearbook, 1976, vol. I, p. 87). Many other members were, however, of the idea that breach of the obligation laid down in Article 2 (4) of the United Nations Charter should be treated as an international crime. See speeches by Mr Yasseen (id., pp. 62—63), Mr Seite Cämara (id., p. 68), Sir Francis Vallat (id., p. 69), Mr Marttne\ Moreno (id., p. 70), Mr Ushakov (id., p. 72), Mr Quentin-Baxter (id., p. 80), Mr Rossides (id., p. 82) and Mr El-Erian (id., pp. 8 5 - 8 6 ) . See report by the chairman of the Drafting Committee, Mr Sahovic (ILC Yearbook, 1976, vol. I, p. 240). For Mr Tabib?s position see id., pp. 62, 67, 244; contra, Mr Ago (id., pp. 66, 89). On the same point see speeches by Mr Sette Cämara (id., p. 68) and Mr Quentin-Baxter (id., pp. 79 — 80).

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sion nevertheless chose not to take a position on this point. It recognized that it was not its task to define the precise notion of aggression55. The members of the Commission were also unanimous that the breach of obligations aimed at safeguarding the right of self-determination of peoples (paragraph 3(b) of the Article) could constitute an international crime. Furthermore, they agreed on the fact that the establishment or the maintenance by force of colonial domination is today recognized as a crime by the international community as a whole56. It should be pointed out in this connection that some members would have preferred to delete the expression "by force"57. The majority of the Commission had a different opinion, but the commentary states that "the expression 'by force' should be understood as meaning against the will of the subject population, even if that will is not manifested, or has not yet been manifested, by armed opposition"58. According to the Commission, safeguarding the human being (paragraph 3 (c) of the Article) is another area where obligations occur whose violation may be recognized as an international crime. On this point too there was general agreement in the Commission59. Differences of view were manifested solely with regard to the need to confine the hypotheses of international crime to cases where there was a breach "on a widespread scale" of these obligations. Some would have liked this qualification eliminated, but the majority were opposed60. In the commentary, the Commission explains that it added this qualification because it felt that international law now in force treated as an international crime only a breach taking the form of "a large-scale or systematic practice adopted in contempt of the rights and dignity of the human being"61. Commission members were all 55 56

57

58 59

60

61

ILC Yearbook, 1976, vol. II, pt. 2, p. 121. See also M r Ago {id., 1976, vol. I, p. 252). On the international crimes constituted by breaches of obligations aimed at safeguarding peoples' right of self-determination, see particularly the speech by Mr Bedjaoui (ILC Yearbook, 1976, vol. I, p. 81). See Mr Seite Camara and Mr Njenga {ILC Yearbook, 1976, vol. I, p. 246). Contra, see Mr Ramangasoavina and Mr Quentin-Baxter {id., pp. 247 and 249 respectively). ILC Yearbook, 1976, vol. II, pt. 2, p. 121. See also M r Ago {id., 1976, vol. I, p. 252). In order to designate this category of obligations, some members would have preferred using a formula of the type utilized by the special rapporteur in his preliminary draft article {ILC Yearbook, 1976, vol. II, pt. 1, p. 54); the formula would speak of obligations aimed at "respect for human rights and fundamental freedoms". See speeches by M r El-Erian {id., 1976, vol. I, p. 244), Mr Tabibi (id.), Mr Bilge (id.), and M r Njenga {id., p. 246). Contra M r Reuter {id., p. 245). Among those in favour of deleting the qualification were: Mr Yasseen {ILC Yearbook, 1976, vol. I, p. 243), Mr Sette Camara {id., p. 246), Mr Njenga (id.), and Mr Ramangasoavina {id., pp. 247 — 48). The majority position was illustrated by M r Ushakov {id., p. 248), Mt Quentin-Baxter {id., pp. 2 4 9 - 5 0 ) and Mr Ago (id., p. 252). ILC Yearbook, 1976, vol. II, pt. 2, p. 121. See also the speech by Mr A g o (id., 1976, vol. I, p. 252).

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agreed that slavery, genocide and apartheid are international crimes according to the law in force, but some were particularly insistent that these examples were not exhaustive 62 . The fourth area of obligations mentioned is that of obligations aimed at the safeguard and preservation of the human environment (paragraph 3(d) of the Article). Although these were obligations of recent creation, Mr Ago maintained that it was particularly in this area that there might arise, in the future, wrongful acts prejudicial to the fundamental interests of the international community 63 . The members of the Commission had no difficulty in admitting that this was a category of obligations whose breach could constitute an international crime. Some would have preferred mention, however, as made by the special rapporteur in his Draft Article — of a broader category: that of the conservation and the free enjoyment for everyone of a resource common to all mankind 64 . Some differences of opinion were shown in connection with the example chosen by the drafting committee to indicate a breach currently recognized as a crime by the international community as a whole; the massive pollution of the atmosphere or the seas. On the one hand, some disputed that international law currently in force treated as a crime any massive pollution of the atmosphere or the seas65; on the other hand, others indicated that there were other breaches of obligations relating to the safeguarding of the human environment that ought to be treated as crimes 66 . The Commission majority decided to keep the example chosen by the drafting committee. (b) Views of the Commission Members Concerning the Consequences of International Crimes Having thus completed drafting the formula to be used to designate the acts within the category of particularly serious internationally wrongful acts (called international crimes), and having indicated (in paragraph 4 of the Article) that all other wrongful acts fall within the category of "ordinary" wrongful acts (called international delicts), the Commission's task was complete as far as the drafting of Article 19 was concerned. As it stressed, in drafting the Article, the Commission had taken as its task solely to establish whether, having regard to the subject-matter of the obligation 62 63 64

65

66

See Mr Ago's reply (ILC Yearbook, 1976, vol. I, p. 252). Id, 1976, vol. I, p. 253. See M r Castaneda {id., 1976, vol. I, p. 243), M r El-Erian (id., p. 244) and Mr Njenga (id., pp. 246 - 47). According to M r Ushakov, only certain types of massive pollution (for instance that caused by a series of nuclear tests near the territory of another State) could be considered as international crimes ( I L C Yearbook, 1976, vol. I, pp. 73 and 248). In this connection, M r Castaneda mentioned deliberate action to alter the climate (ILC Yearbook, 1976, vol. I, p. 243), and Mr Seite Cämara mentioned massive pollution of the biosphere (id., p. 246).

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breached, a distinction had to be drawn between different categories of internationally wrongful acts and to indicate how to determine into which of the different categories a given wrongful act might fall. There was no question of indicating in the text of Article 19 (nor in other articles in the first part of the Draft) what the consequences of the distinction drawn are as far as responsibility is concerned. The articles in the second part of the Draft — dealing with the content, forms and degrees of international responsibility — were to specify the responsibility regime to be attached to international crimes, and to international delicts 67 . Given that the draft of Article 19 was nevertheless to be submitted to the General Assembly before the Commission had drawn up the articles in the second part of the Draft, the Commission wondered whether it should supply indications in the commentary of what it felt should be the responsibility regime applying to international crimes. Mr Tsuruoka was in favour of this solution. He pointed out that govern ments would have been unlikely to agree to express their opinion on the distinction drawn in the draft of Article 19 before they knew what consequences the Commission intended to attach to it 68 . The special rapporteur took a different opinion. He maintained that one should beware of coming to hasty conclusions on such a delicate and complex issue. He pointed out that the advocates of the category of international crimes had put forward partly different views as to the content of the responsibility regime bound up with these wrongful acts. The choice among these different theses called for further study, which could be carried out only when the Commission was dealing with the drafting of the articles in the second part of the Draft dealing with the consequences of internationally wrongful acts. It was further important to proceed by successive stages along the road of distinguishing between categories of wrongful acts. The first stage that governments were being asked to consider occurred in Article 19. This stage, consisted in recognizing that there exists a category of internationally wrongful acts more serious than others, entailing different forms of responsibility. In a subsequent stage one would go more clearly into exactly how the responsibility consequent upon these wrongful acts differed from that consequent upon other wrongful acts 69 . The majority of Commission members supported Mr Ago's views. The Commission therefore decided to postpone any decision as to the content of the responsibility regime, under which a State guilty of an international crime would be placed, until the time when it would draft the articles in

67 68 65

ILC Yearbook, 1976, vol. II, pt. 2, p. 117. Id., 1976, vol. I, pp. 78 and 250. Id., pp. 9 0 - 9 1 , 251.

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the second part 70 . The commentary to Article 19 in no way anticipates the Commission's intentions in this connection, except on some points of a very general nature. These points are as follows: (1) The Commission intended to codify the rules of customary international law relating to the responsibility entailed by international crimes. The Commission, in fact, stressed that "general international law now differentiates between various types of internationally wrongful acts and, consequently, between various regimes of international responsibility". It further added that "its task is to codify general international law" 71 . It is not entirely clear whether it meant also to deal with the forms of responsibility prescribed by conventional law, particularly the United Nations Charter. Not quite concordant views had been expressed in this connection during the discussion 72 . In the commentary to Article 19, the Commission stated that it did not intend either to interpret or to supplement the provisions of the Charter providing for a special regime of measures in regard to certain acts deemed particularly severe. It added that the provisions of the Charter would always prevail over those of a general codification convention such as the one in which it was engaged 73 . It seems implicit in this stance that the Commission had no intention to deal in the Draft Article with the forms of responsibility provided for by the Charter, intending at most to refer to it. (2) The Commission thought that the responsibility regime appropriate to international crimes ought to be distinguished from that appropriate to all other wrongful acts under two aspects: (a) that of the forms of responsibility and (b) that of the subjects which are permitted to implement (mettre en oeuvre) that responsibility 74 . It is, however, not entirely clear whether this second aspect of differentiation was, according to the Commission, appropriate to all crimes or only some of them; in other words, it is not clear whether, according to the Commission, all wrongful acts coming within the category of crimes or only some of them, authorized even subjects not directly injured to implement the responsibility of the guilty State75. 70 71 72

73 74 75

Id., 1976, vol. II, pt. 2, p. 117. Id., p. 118. See speeches by Mr Yasseen (ILC Yearbook, 1976, vol. I, p. 63), Mr Sette Cämara {id., p. 68), Mr Kearney {id., pp. 7 6 - 7 7 ) , Mr Tsuruoha {id., p. 78), Mr Ustor {id., p. 84), Mr Ei-Erian {id., pp. 86 — 87). The position of the special rapporteur on the matter was not very clear {id., pp. 6 6 - 6 7 , 90); c f . also, id., 1976, vol. II, pt. 1, p. 33 ff. ILC Yearbook, 1976, vol. II, pt. 2, p. 118. Id., p. 117. Concerning the forms of responsibility applicable to crimes, the Commission says that they "naturally differ" from those which apply to other wrongful acts. As regards the subjects permitted to implement these various forms of responsibility, however, it says that they "may also be different" {ILC Yearbook, 1976, vol. II, pt. 2, p. 117).

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(3) The Commission did not intend to lay down a uniform regime of responsibility applicable to all international crimes. This is a very important point. The Commission stresses in the commentary to Article 19 that international crimes are not all of the same gravity and that it is "very unlikely" that they all entail the same forms of responsibility 76 . It has, moreover, already been pointed out that some Commission members would have wished aggression to be dealt with separately in Article 19, precisely because of the special legal consequences it involves. The Commission majority, while preferring the present formula, was in agreement on the point that aggression entailed more severe forms of responsibility than other international crimes. (4) Still, in connection with the special forms of responsibility that the Commission proposed to attach to international crimes, the only further indication that appears from the commentary to Article 19 is a "negative" one. The Commission states that when it speaks of special forms of responsibility applicable to a State guilty of an international crime, it does not intend to refer to the right-duty of other States to punish the individualorgan responsible for the conduct constituting the State crime. For the Commission, the punishment of the individual-organ does not constitute a form of responsibility of the State of which he is the organ or, in any case, the sole form of its responsibility 77 . Regarding the content of the regime of responsibility that ought to attach to international crimes, the points on which, in 1976, the Commission committed its future position are really very limited. If one nevertheless considers the debates that went on within the Commission, one may obtain a less vague idea of what its members had in mind in speaking of a special regime of responsibility. 76 77

Id., pp. 1 1 7 - 1 8 . Id., pp. 1 0 3 - 4 and 119. At the start of the debate, Mr Kearney (ILC Yearbook, 1976, vol. I, pp. 13 and 17) and Mr El-Erian (id., p. 18) appeared to consider punishment of an individual-organ as being one of the forms of responsibility of the State guilty of an international crime. Mr Tammes (id., p. 64) and Mr Usbakov (id., p. 73), Mr Ago (id.) and Mr Quentin-Baxter (id., p. 79) had a different opinion. According to them, punishment of the individual-organ was not a form of State responsibility. The Commission would not therefore need to deal with it in considering international crimes of States. This was so even though often — but not necessarily — acts entailing graver responsibility of the State coincided with those in connection with which States were authorized to pursue and punish the organs of foreign States which had committed them. There is another important point. According to the Commission, even if one wished to consider punishment of the State organs — in cases where it is admissible — as a sanction applied to the State, such punishment "certainly does not exhaust the prosecution of the international responsibility incumbent upon the State for internationally wrongful acts which are attributed to it in such cases by reason of the conduct of its organs" (id., 1976, vol. II, pt. 2, p. 104). See in this connection speeches by Mr Martine^ Moreno and Mr Castaneda (id., 1976, vol. I, pp. 70 and 241).

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(i) Forms of Responsibility Provided for by the UN Charter All Commission members believed that the United Nations Charter provided special forms of responsibility applicable to a State that breached certain obligations particularly important for the safeguarding of fundamental interests of the international community. Commission members referred in particular to breaches of Article 2(4) of the Charter and to all breaches capable of threatening or breaking peace. The special regime of responsibility, established in the Charter, manifested itself in the application of collective sanctions to be added to the obligation to make reparation provided by customary law in the event of breach of any international obligation. The collective sanctions they had in mind were principally the measures provided by chapter VII of the Charter. Other measures, though, were also mentioned (for instance, expulsion from the organization, suspension of the rights and privileges of membership, etc.) 78 . It should be pointed out, however, that Mr Castaneda and Mr Reuter expressed some doubts as to the possibility of considering the measures provided by chapter VII as being forms of responsibility 79 . It is not clear, however, what consequences Commission members intended to draw, for the purposes of drafting the articles on the regime of responsibility for international crimes, from the statement that the Charter attaches special consequences to certain particularly serious wrongful acts. As was said, the Commission affirmed in the commentary to Article 19 that it intended neither to interpret nor to supplement the provisions of the Charter. This being the case, it should be presumed that Commission members intended to confine themselves to referring to the Charter provisions providing for the collective sanctions mentioned 80 . (ii) Forms of Responsibility Provided for by Customary Law Regarding the regime of responsibility provided for by customary law, a distinction should be drawn between, on the one hand, the responsibility 78

79 80

For the special rapporteur's position regarding the special regime of responsibility provided for in the Charter, see ILC Yearbook, 1976, vol. II, pt. 1, p. 33 ff.; and id., 1976, vol. I, pp. 58, 66, 90; for that of the other Commission members, see speeches by Mr Yasseen (ILC Yearbook, 1976, vol. I, p. 63), Mr Sette Cämara {id., p. 68), Sir Francis Vallat (id., p. 69), Mr Martine£ Moreno (id., pp. 70 — 71), Mr Ramangasoavina (id., p. 76), Mr Kearney (id., pp. 76—77), Mr Tsuruoka (id., p. 78), Mr Rossides (id., pp. 8 2 - 8 3 ) , Mr Ustor (id., p. 84), Mr El-Erian (id., pp. 8 5 - 8 7 ) and Mr Bilge (id., p. 87). ILC Yearbook, 1976, vol. I, respectively pp. 242 and 245. As has been said, this is nevertheless a point on which it is hard to establish the intentions of the Commission members. Some statements by Commission members and by the rapporteur himself ( c f . , supra note 72) seem to indicate an intention to deal in the second part of the Draft also with the forms of responsibility provided for in the Charter.

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that may be implemented by the directly injured subject and, on the other, that implemented by other subjects. In connection with the first aspect, it clearly appears that the special rapporteur was favourable to the thesis that general international law attributed to a State suffering certain particularly serious wrongful acts not only the right to claim reparations from the guilty State (as for any wrongful act), but additionally (i. e., not only where the latter had refused reparation) the faculty of applying sanctions to it 81 . It should be stressed that for Mr Ago the term "sanction" designates a behaviour that represents breach of an obligation toward the subject guilty of the wrongful act. This behaviour has at least in part afflictive purposes, but is not necessarily coercive: peaceful reprisals, for Mr Ago, are sanctions 82 . In affirming that any international crime authorizes the State directly injured to adopt sanctions vis-a-vis the guilty State, he did not therefore wish to say that any crime authorized it to adopt measures implying the use of force. All the authors cited by Mr Ago as favouring the singling out of the category of particularly serious wrongful acts stress that only some of these acts (for the majority of these authors, only armed aggression) authorize the injured State to adopt the measures in question 83 . Furthermore, Mr Ago indicated that it was apparent from the practice of States that "recourse to certain extreme measures of coercion and sanction has in fact been envisaged only as a reaction to infringements of essential obligations relating to the maintenance of peace" 84 . During the discussion, the other members of the Commission did not give much indication of what they thought regarding the special measures that might be adopted by the State directly injured by an international crime. They confined themselves in general to confirming that international crimes entail not merely the obligation to make reparation, but also subjection to sanctions 85 . It is not clear, however, if the sanctions they considered were only collective measures, or else also measures applied individually by the State directly injured, such as reprisals. The second alternative seems more likely, taking into account the fact that the rapporteur had indicated clearly in his report that for those authors favouring the notion of international crimes, a typical consequence of these

81

82 83 84 85

See comments drawn up by Mr Ago accompanying his preliminary draft article on international crimes ( I L C Yearbook, 1976, vol. II, pt. 1, esp. p. 45 ff.) and his oral presentation of the article (id., 1976, vol. I, p. 91). See also, for previous positions along the same lines, id., 1969, vol. I, p. 241, and id., 1971, vol. II, pt. 1, p. 210. See ILC Yearbook, 1971, vol. II, pt. 1, p. 208. ILC Yearbook, 1976, vol. II, pt. 1, pp. 45 ff., 48 ff. Id., p. 53. See speeches by Mr Bedjaoui (ILC Yearbook, 1976, vol. I, pp. 11 — 12), Mr Yasseen (id., p. 63), Mr Hambro (id., p. 64), Mr Sette Cämara (id., p. 68), Mr Martine% Moreno (id., p. 70), Mr Ramangasoavina (id., p. 76), Mr Bilge (id., p. 87) and Mr Castaheda (id., p. 242).

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wrongful acts was precisely the possibility for the State directly injured to adopt sanctions against the State guilty of the crime 86 . It is harder to establish the views of Commission members on the possibility that subjects other than the one directly injured might, through customary rules, assert the responsibility of the State guilty of an international crime. It is true that both in 1976 and in previous years, several Commission members had affirmed that international crime involved responsibility toward the international community as a whole. But it is not clear whether they intended by this affirmation to refer solely to the possibility of applying to the culprit the collective sanctions provided by the Charter, or also to forms of responsibility contemplated in customary law. In the report he had submitted to the Commission, Mr Ago indicated that some proponents of the category of international crimes felt that these wrongful acts involved a relationship of responsibility with all members of the international community 87 . Mr Bedjaoui said he was of the same opinion 88 . Mr Ushakov, Mr Ago and Mr. Quentin-Baxter saw in international crimes (or at least in some of them) a breach of obligations which bound the State, not to a particular State, but to all the members of the international community 89 . Since they indicated that these breaches injured subjective rights of all States, it is to be presumed that for them too, all States are entitled to assert the responsibility flowing from breach of these obligations90. As for Mr Hambro and Mr Kearney, they stressed the existence of universal international conventions such as the Convention on the Prevention and Repression of the Crime of Genocide, which confer on all Member States the right to secure respect for the obligations they contain. Mr Kearney spoke in this connection of "obligations whose breach could infringe the rights of the whole community of nations" 91 . It is therefore 86 87 88

89

90

91

ILC Yearbook, 1976, vol. II, pt. 1, p. 45 ff. Id., p. 48 ff. He stated that some particularly serious breaches entail the responsibility of the State "not only towards the injured State, but also towards all the States of the international community" ( I L C Yearbook, 1976, vol, I, p. 11). For Mr Ushakov's position, see supra note 27; for Mr Ago's, see ILC Yearbook, 1976, vol. I, p. 18; for Mr Quentin-Baxter's, see id., p. 80. Mr Quentin-Baxter seems to identify the category of most serious breaches with that of breaches of obligations which injured all States. Mr Ushakov stated that in this case "States other than the State directly injured might act ... to compel the offending State to abide by international law" (see supra note 27). Mr Ago indicated that "there were also cases when the only 'active' subject of responsibility was the State whose rights had been infringed, and cases where other States too (or international organizations) could invoke that responsibility" ( I L C Yearbook, 1976, vol. I, p. 19). These stances do not seem to make action by States subordinate to prior decision in that sense by United Nations organs or other collective bodies. ILC Yearbook, 1976, vol. I, p. 13. For Mr Hambro's position see id., p. 12.

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to be presumed that, according to Mr Kearney and Mr Hambro, the breach of a customary norm (such as that forbidding acts of genocide) confers on all those to whom the norm is addressed, and thus on all States in the international community, the right to ensure respect for it. In other words, the breach confers them all the right to implement the responsibility of the guilty State. As has been said92, the Commission included in the notion of "international responsibility" both the obligation to make reparation (lato sensu) and subjection to a sanction (not necessarily, a coercive measure). In affirming, then, that a State not directly injured may implement (or assert) the responsibility of the State guilty of the international crime, one may refer to the fact that it has the right to claim reparation, or that it has the faculty (the right, according to some) to apply sanctions, or both. The Commission members dwelt specially on one of these forms of responsibility: the faculty (or possibly the duty) to apply sanctions. Mr Bedjaoui stressed the importance, in order to guarantee respect for certain obligations safeguarding fundamental interests of the international community, of allowing States other than the victim of the wrongful act to adopt countermeasures, even independently of a prior decision in this sense by an organ of the United Nations. He referred particularly to the stances of the non-aligned countries. They declared that they considered aggression, the threat or the use of force or other acts destined to prevent the exercise of the sovereign rights of a non-aligned country as being directed against the non-aligned countries as a whole. Thus, they declared their readiness to provide that country, at its request, with the appropriate assistance93. Other members (Mr Kearney and Mr Castaneda}, however, expressed concern regarding the possibility for States not directly injured to adopt individually decided sanctions94. It is nevertheless apparent from their speeches that their concern was the application of measures involving the use of armed force other than for collective self-defence95. But the proponents of the category of international crimes have never stated that States not directly injured (nor even those directly injured) could adopt measures involving the use of armed force in cases other than that of self-defence in response to armed aggression. The question to be solved was that of the possibility for States not directly injured to adopt, in response to international crimes, individually decided sanctions not involving the use of armed force (for instance, breach of a trade treaty). On this point, Commission members showed divergent ideas. Mr Bedjaoui, as has been said, was in favour, Mr

92 93 94

95

See supra, para. 4. ILC Yearbook, 1 9 7 6 , v o l . I, pp. 8 0 - 8 1 . F o r M r Kearney's position, see ILC Yearbook, 1 9 7 6 , v o l . I, p. 77, f o r that o f M r Castaneda, id., pp. 2 4 1 — 4 2 . This is particularly clear f r o m M r Castaneda's speech cited in the f o r e g o i n g note.

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Kearney opposed. Mr Castaneda took an intermediate position: he stressed the need for caution and for great care in studying the breadth and scope of such sanctions. Mr Ago spoke of coordinated reactions 96 . Regarding the other form of responsibility that international responsibility may take, namely the obligation to make reparation, the question arose whether in the event of a wrongful act injuring the fundamental interests of the international community, all States — not merely the one directly affected — would have the right to claim reparation at least in the form of the delayed performance of the obligation (cessation of the wrongful conduct) and of restitutio in integrum. In 1976 the members of the Commission did not address this point directly. Some of them, however, seemed implicitly in agreement from their approval of the International Court of Justice's statement in the Barcelona Traction case, to the effect that all States have a legal interest in having the rights conferred by certain rules protected 97 . (c) Views of the Commission Members Concerning the Necessity of Providing for a Body for the Settlement of Disputes Relating to International Crimes One last point: that of the necessity or otherwise of providing for a system of compulsory settlement of disputes relating to the existence of an international crime. In his report, Mr Ago stated that, in view of the seriousness of the legal consequences arising from international crimes, the finding in a specific case that an international crime had been committed ought to be left up to an international body. This body might in some areas be the Security Council, and in others the International Court of Justice. For reasons similar to those given in connection with determination of the content of the special regime of responsibility for international crimes, he nevertheless proposed to postpone all discussion of the matter to a later date 98 . The Commission was in agreement. Only Sir Francis Vallat, Mr Kearney and Mr Bilge mentioned this point 99 . 6. Notes on Views in the ILC on the Consequences of International Crimes, as Apparent from Discussions in 1979 and 1980 on Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness Between 1977 and 1980 the Commission continued and completed work on the articles of the first part of the Draft dealing with the determination of the conditions for the existence of an internationally wrongful act. The Commission did not therefore deal directly during this period with the 96 97

98 99

ILC Yearbook, 1976, vol. I, p. 90. See speeches by Mr Ramangasoavina (ILC Yearbook, 1976, vol. I, p. 75), Mr QuentinBaxter {id., p. 80) and Mr Castaneda {id., p. 241). ILC Yearbook, 1976, vol. II, pt. 1, p. 53 and id., 1976, vol. I, pp. 6 0 - 6 1 . ILC Yearbook, 1976, vol. I, pp. 69, 7 7 - 7 8 and 8 7 - 8 8 respectively.

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legal consequences of internationally wrongful acts, and consequently with those of international crimes. Nevertheless, in working on some of the articles concerning circumstances precluding wrongfulness, it had to discuss a number of issues concerning measures adopted by the injured State or by other subjects toward the State guilty of the wrongful act. The stances adopted by the Commission members at that time confirmed and clarified a number of points arising from the debate, held in 1976 to prepare Draft Article 19. This continuity of views is all the more important since the Commission's composition had in the interim changed considerably. The articles of interest are those dealing with conduct constituting a reaction to an internationally wrongful act, namely the drafts of Articles 30 and 34. Draft Article 30, adopted in 1979, is worded as follows: Article 30 Countermeasures in Respect of an Internationally Wrongful Act The wrongfulness of an act of a State not in conformity with an obligation of that State towards another State is precluded if the act constitutes a measure legitimate under international law against that other State, in consequence of an internationally wrongful act of that other State. 100

The Commission states in the commentary that "the countermeasures with which this article is concerned are measures the object of which is, by definition, to inflict punishment or to secure performance — measures which, under different conditions, would infringe a valid and subjective right of the subject against which the measures are applied" 101 . It adds that they cover both measures applied "directly and independently" by the injured State against the State which has committed an internationally wrongful act against it, and measures applied by the injured State itself or by other States "on the basis of a decision taken by a competent international organization" 102 . The Commission uses the term "countermeasure" for the first time in this article. The Commission preferred it to the term "sanction", which had been proposed by the special rapporteur103 and had been previously used by Commission members — and by the Commission itself in the commentary to the Draft Articles 1 and 19104 — to designate the conduct adopted by the subject directly injured or by other subjects toward the author of the wrongful act. This change in terminology is not, however, the expression of a change in views as to the possible consequences of

100

101 102 103

104

For the commentary on this article, see ILC Yearbook, 1979, vol. II, pt. 2, pp. 115 — 22; for the debate see id., 1979, vol. I, pp. 5 5 - 6 3 , 171, 175. ILC Yearbook, 1979, vol. II, pt. 2, p. 116. Id., p. 121. See preliminary draft article drawn up by Mr Ago (ILC Yearbook, 1979, vol. II, pt. 1, p. 47). ILC Yearbook, 1973, vol. II, pp. 1 7 4 - 7 5 (see also supra para. 4) and id., 1976, vol. II, pt. 2, p. 98 ff.

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internationally wrongful acts. The commentary to Article 30 in fact states that the Commission gave preference to the term "countermeasure" to make allowance for the trend in modern international law "to reserve the term 'sanction' for reactive measures applied by virtue of a decision taken by an international organization" 105 . The Commission intended, however, to refer not only to such reactive measures, but also to those taken independently by the injured State (generally termed "reprisals"). The term "countermeasures", in contrast with the term "sanction", seemed to prevent any misunderstanding. It should be stressed, however, that the special rapporteur106 and the Commission 107 , in their previous use of the term "sanction", had taken it in the broad sense corresponding precisely to that assigned by Article 30 to the term "countermeasure". Terminology apart, it is thus apparent from the commentary to Article 30 that the Commission in 1979 fully shared the views that had been set forth by some of its members right from the initial discussions on the codification of State responsibility; namely, that there are cases where in response to an internationally wrongful act of a State, the State directly injured, and sometimes even other States, are authorized to adopt conduct other than that which would be required by an obligation toward the guilty State, with the objective of repression or of securing performance. What are these cases? What should the content of these conducts, of these countermeasures as the Commission calls them, be in order for it to be considered legitimate in international law? The Commission stated that it need not examine these questions in connection with Article 30. It would study them in the context of part two of the Draft Articles (dealing with the forms of international responsibility). The Commission did, nevertheless, hold preliminary discussions of the topic. For the purposes that interest us, the following points may be noted: (1) The Commission felt that there are cases where the State directly injured by an internationally wrongful act may independently decide on and apply countermeasures (which then take the name of reprisals) 108 . The 105

106

107 108

ILC Yearbook, 1979, vol. II, pt. 2, p. 121. During the debate, almost all Commission members had asked, for reasons indicated in the text, for the term "sanction" proposed by the special rapporteur to be abandoned. See id., 1979, vol. I, pp. 57 — 63, 171, 175. See ILC Yearbook, 1971, vol. II, pt. 1, pp. 2 0 8 - 9 ; id., 1976, vol. II, pt. 1, p. 27 ff. and esp. the commentary accompanying the preliminary Draft Article 30, id., 1979, vol. II, pt. 1, pp. 39—47. The term "sanction" is defined thereby (p. 39) in exactly the same words as used by the Commission in the commentary to the Draft Article 30 to illustrate the meaning of the term "countermeasure". See ILC Yearbook, 1973, vol. II, pp. 1 7 4 - 7 5 and 1976, vol. II, pt. 2, p. 98ff. ILC Yearbook, 1979, vol. II, pt. 2, pp. 116 and 121. In the same sense see Mr Ago's Eighth report (id., 1979, vol. II, pt. 1, p. 39ff.). All Commission members were in agreement on this point. See esp. the speech by Mr Schwebet (id., 1979, vol. I, pp. 56-57).

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Commission, however, felt that this consequence followed only from certain wrongful acts. In the commentary to Article 30, it states that there are different kinds of offences. Some breaches would give rise solely to the right of the injured State to demand reparation. In these cases, the injured State could legitimately adopt countermeasures only if reparation had been refused 109 . It therefore admitted a differentiation in the regime of responsibility, depending on the content of the obligation breached. Did the Commission have in mind the distinction between international crimes and international delicts? Did it assume that only the State that is the victim of an international crime possesses, in addition to the right to demand reparation, the faculty to adopt a countermeasure? The commentary on Article 30 is silent on this point, but if account is taken of the debate that took place when Article 19 was adopted, it would seem that the answer should be in the affirmative. A faculty (or right) to adopt countermeasures in certain cases does not mean faculty (or right) to adopt any countermeasure. The Commission stressed in the commentary that there are countermeasures which are not legitimate. In this connection, it insisted especially that modern international law bans the State directly injured from independently adopting reprisals involving the use of armed force in peacetime, whatever the wrongful act 110 . The sole case where a State could independently adopt measures involving the use of armed force in response to a wrongful act was that of self-defence 111 . These clarifications are extremely important. They show that the concern manifested by some States and some authors, who feared that the Commission intended to provide as a consequence of international crimes the right of the injured State (and even other States) to have recourse to armed reprisals, is devoid of foundation. (2) The Commission explicitly admitted for the first time the existence of internationally wrongful acts which entitle subjects not directly injured to take countermeasures against the State guilty of the wrongful act. In the commentary to Article 30, the Commission stated that: [T]he former monopoly of the State directly injured by the internationally wrongful act of another State, as regards the possibility of taking reactive measures against that other State consisting of acts that would otherwise be unlawful, is no longer absolute in modern international law.

109

1,0

111

ILC Yearbook, 1979, vol. II, pt. 2, pp. 116 and 121. See also, in this sense, Mr Ago'% Eighth report {id., 1979, vol.11, pt. 1, p. 39) and speeches by Mr Yankov and Mr Francis {id., 1979, vol. I, pp. 57 — 58, 59 — 60 respectively) during the discussion. ILC Yearbook, 1979, vol.11, pt. 2, pp. 116 —18. In this connection see Mr. Ago's Eighth report {id., vol. II, pt. 1, pp. 39—42) and speeches by Mr Ago {id., 1979, vol. I, pp. 5 5 - 5 6 ) , Mr Schwebet {id., p. 56), Mr Njenga {id., p. 58), Mr Francis {id., p. 59), Mr Tabibi {id., pp. 60—61) and Mr Jagota {id., p. 61). ILC Yearbook, 1979, vol. II, pt. 2, p. 118, n. 593.

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It added that some obligations are of such broad sweep that a breach of any one of them affects all members of the international community. The international community had therefore turned toward: a system which vests in international institutions other than States exclusive responsibility, first, for determining the existence of a breach of an obligation of basic importance to the international community as a whole, and, thereafter, for deciding what measures are to be taken in response and how they are to be implemented. Under the Charter of the United Nations, these responsibilities are vested in the competent organs of the Organization. These organs are empowered ... not simply to authorize, but even to direct a Member State ... a group of Member States, or at times all Member States, to apply certain sanctions ... against a State which has committed an offence of a specified content and gravity 112 .

Countermeasures adopted by States other than those directly injured on the basis of a decision by the Organization might even — as the Commission observed — in certain cases involve the use of armed force 113 . Furthermore, the condition of prior submission of a demand for reparation, and even the principle of proportionality, did not play the same role as in the case of countermeasures decided and applied independently by the State directly injured 114 . Breach of these obligations therefore entailed a special regime of responsibility. Although the Commission does not say so explicitly, it is clear that it was thinking of international crimes. Did the Commission also consider that in certain cases States not directly injured were entitled to adopt independently, irrespective of any prior decision by the United Nations Organization or other organizations, countermeasures toward a State guilty of a wrongful act? In the report he submitted to the Commission, Mr Ago had shown himself rather unfavourable to such a solution 115 . The other members did not take positions on this point. The commentary to Article 30 is silent. It is clear that the Commission did not want to prejudice its future position on one of the most delicate questions arising in respect of the determination of the consequences of particularly serious wrongful acts. All that appears from the commentary is that States not directly injured may not react to the wrongful act by the application of measures involving the use of armed force, except in the case where they act by way of collective self-defence 116 . In 1980, still in connection with the chapter on circumstances precluding wrongfulness, the Commission adopted the draft of Article 34 relating to self-defence. It is worded as follows:

112

113 114 115 116

Id., pp. 118 — 19. The Commission commentary repeats Mr Ago's report on this point almost verbatim ( i d 1 9 7 9 , vol. II, pt. 1, p. 43). ILC Yearbook, 1979, vol. II, pt. 2, p. 119. Id., p. 121. ILC Yearbook, 1979, vol. II, pt. 1, p. 43. ILC Yearbook, 1979, vol. II, pt. 2, p. 118, n. 593.

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Article 34 Self-Defence The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations 117 .

For the first time, in the context of the codification of State responsibility, the Commission found itself drafting an article on the same topic as an article of the United Nations Charter. The Commission believed that: [N]o codification taking place within the framework and under the auspices of the United Nations should be based on criteria which, from any standpoint whatsoever, do not fully accord with those underlying the Charter, especially when, as in the present case, the subject-matter concerns so sensitive a domain as the maintenance of international peace and security118.

It therefore decided: (a) to refer, for the purposes of the Draft Articles, to the notion of self-defence accepted by the Charter, without endeavouring to establish whether the rule codified there corresponds entirely with the customary rule of international law; and (b) not to take a stand on the various theses that have been put forward as to the content of Article 51 and other pertinent provisions of the Charter, particularly on whether the Charter admits recourse to measures of self-defence solely in cases of reaction to "armed attack" ("aggression armee"). The task of interpreting the Charter ought to be left up to the competent organs of the United Nations119. Despite this premise, the Commission gave some indications in the commentary on the notions of "measures of self-defence" accepted in the Draft Article 34, and the conditions to which its exercise is subject. It is apparent from the commentary that, according to the Commission, measures of self-defence are measures that involve (or at least may involve) the use of armed force; these measures, like reprisals, are decided and applied independently by the directly injured State and sometimes even by other States (collective self-defence)120. Measures of self-defence presuppose, like the countermeasures dealt with in Draft Article 30, an internationally wrongful act of the State against which such measures are taken 121 . Yet where countermeasures are applied ex post facto with an essentially punitive object (a target which may represent For the commentary on this article, see ILC Yearbook, 1980, vol. II, pt. 2, pp. 52—61; for the discussion, id., vol. I, pp. 184 - 94, 220 - 23, 227 - 31, 235 - 40, 2 7 1 - 7 2 , 306. 118 ILC Yearbook, 1980, vol. II, pt. 2, p. 59. »' Id., pp. 5 9 - 6 0 . 120 Id., pp. 53 — 54. The Commission states inter alia "self-defence almost by its very nature involves the use of armed force" {id., p. 54). 121 Id., pp. 52—53. It should be stated that the Commission did not intend through this statement to take a stance on the question of the legitimacy or otherwise of preventive self-defence {id., p. 59, n. 211). 1,7

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an objective per se, or be accompanied by the intention of obviating future repetition of the wrongful act, or exert pressure in order to secure compensation for harm suffered), measures of self-defence are aimed at preventing the accomplishment of the wrongful act; more specifically, they have the object of "preventing another's wrongful action from proceeding and achieving its purpose" 122 . According to the Commission, what are the internationally wrongful acts for which a State may, without violating the Charter, take measures of self-defence? The Commission refused in the commentary to take a stance on the various arguments put forward in this connection. It is apparent from the discussion that Commission members were agreed on regarding "armed attack" ("aggression armee"), mentioned in Article 51 of the Charter, as one such act but they were divided as to the existence of other wrongful acts with such consequences. The special rapporteur, Mr Ushakov, Mr Francis, and Mr Yankov felt that the situation considered in Article 51 was the only one where a State was entitled to take measures of self-defence123. All the other members had doubts in this connection. In their opinion, one could not exclude the existence of other situations, apart from that mentioned in Article 51, where a State might take measures of self-defence without thereby being in breach of the Charter 124 . Most of these members did not indicate which wrongful acts they had in mind. Those who did so referred to wrongful acts which, though not describable as acts of aggression, nevertheless involve the use of force: acts including the use of armed force but insufficiently severe as to be treated as acts of aggression, or else acts involving the use of economic or political force 125 . Emphasis has been given to the Commission's views on self-defence because it is well known that for some of the authors in favour of the 122

123

124

125

Id., p. 53. The special rapporteur had taken the same line. See Addendum to the Eighth report, ILC Yearbook, 1980, vol. II, pt. 1, pp. 5 4 - 5 5 . For the special rapporteur's position, see preliminary draft of Article 34 by Mr Ago and the relevant commentary ( I L C Yearbook, 1980, vol. II, pt. 1, pp. 51—70) and speeches by Mr Ago during the discussion {ILC Yearbook, 1980, vol. I, pp. 186 — 87 and 240). For Mr Ushakov's position see ILC Yearbook, 1980, vol. I, pp. 189 — 90 and 272; for that of Mr Francis, id., pp. 192 and 272; for that of Mr Yankov, id., p. 272. See speeches by Mr Reuter (ILC Yearbook, 1980, vol. I, pp. 1 9 0 - 9 1 ) , Mr Schwebe! (id., p. 1 9 1 - 9 2 ) , Sir Francis Vallat {id., p. 194), Mr Tsuruoka (id., p. 220), Mr Όίαχ Gon^äle^ (id., pp. 220—21), Mr Barbo^a (id., pp. 221—22), Mr Quentin-Baxter (id., p. 222), Mr Pinto (id., pp. 2 2 2 - 2 3 ) , Mr Tabibi (id., p. 230), and Mr Sucharitkul (id., p. 231). The positions of Mr Sahovic (id., pp. 1 9 3 - 9 4 ) and Mr Verosta (id., p. 229) on this point do not appear clear from the summary records. See speeches by Mr Reuter, Mr Dia^ Gon^ale^, Mr Pinto and Mr Tabibi (supra note 124). It should be stressed that in the commentary to the draft of Article 34 the Commission frequently states that self-defence is a reaction to wrongful acts involving the use of force.

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distinction between international crimes and international delicts, the fact that international law links with certain breaches — and only certain breaches — a right for States who are the victims (and even for other States) to take measures of self-defence is one of the reasons justifying the inclusion of such breaches in a separate category. Given that it is permissible to act in self-defence in response to only some internationally wrongful acts, it cannot be said — in the opinion of these authors — that these are wrongful acts like any other, acts entailing the same legal consequences as all other wrongful acts. It is therefore important to know whether the Commission contemplated ascribing to some international crimes (armed attack and perhaps other cases of wrongful use of force) a subjection to measures of self-defence as one of the special forms of responsibility. The Commission did not take an explicit position on this point, and it is not easy to establish what its views were. On the one hand, it will be recalled that the Commission had stated in the commentary to Draft Article 1 that it was using the expression "international responsibility" to designate "Every kind of new relations which may arise, in international law, from the internationally wrongful act of a State" 126 . One might therefore think that the legal relationship represented by the faculty (or right) of an injured State to take measures of self-defence against the State guilty of a wrongful act, and the corresponding subjection of the latter to such measures, came for the Commission within the notion of international responsibility. On the other hand, one must consider that the Commission, in speaking — again in the commentary to Draft Article 1 — of the new legal relationships that might arise from an internationally wrongful act, had mentioned the following relationships: obligation of reparation together with the right to demand reparation, and the faculty (or right) to inflict sanctions together with subjection to sanctions 127 . It had not spoken of the right to take measures of self-defence. And we have seen that in the commentary to Draft Article 34 the Commission states that self-defence is not a countermeasure (a term which, as we have said, also includes sanctions). Did the Commission therefore not consider subjection to measures of self-defence as a form of responsibility? This assumption seems to be confirmed by the fact that the Commission said in the commentary to the draft of Article 34 that selfdefence has to do with commission of a wrongful act, while countermeasures have to do with "the operation of the consequences of the internationally wrongful act in terms of international responsibility" 128 . The most justified assumption would therefore seem to be that the Commission had no intention to mention subjection to measures of self126 127 128

See supra para. 4. See supra para. 4. ILC Yearbook, 1980, vol. II, pt. 2, p. 53.

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defence in the second part of the Draft Articles, among the special forms of responsibility consequent upon certain international crimes. The fact however remains that according to the Commission one may take measures of self-defence only in response to some particularly serious wrongful acts (armed attack for some members; any wrongful use of force for others). Whether the Commission did or did not see in subjection to measures of self-defence a form of responsibility imputed to the guilty State, it recognized that these wrongful acts entail a legal consequence that other wrongful acts do not entail. It thus recognized that international law subjects these wrongful acts to different treatment.

Section II The States' Positions on Draft Article 19 1. General Outline of the States'

Positions

In the present section we shall consider what reception the States have given to Draft Article 19 and to the distinction between categories of internationally wrongful acts drawn therein. The written comments are not numerous. Little more than a dozen States have so far transmitted their observations and comments on Draft Article 19 to the Commission 129 . On the contrary, some 80 States indicated their views on this Draft Article during the discussions in the Sixth Committee of the General Assembly between 1976 and 1983130. The most

129

130

These States were as follows: Austria (ILC Yearbook, 1980, vol. II, pt. 1, pp. 90 and 92), Byelorussia {id., p. 93), Bulgaria {ILC Yearbook, 1981, vol. II, pt. 1, p. 72), Canada {ILC Yearbook, 1980, vol. II, pt. 1, p. 94), Chile, {id., p. 99), Chechoslovakia {ILC Yearbook, 1981, vol. II, pt. 1, p. 73), Federal Republic of Germany {ILC Yearbook, 1 9 8 1 , vol. II, pt. 1, pp. 7 4 - 7 5 ) , Mali {ILC Yearbook, 1980, vol. II, pt. 1, p. 101), Netherlands {id., p. 103), Spain {ILC Yearbook, 1982, vol. II, pt. 1, p. 17), Sweden {ILC Yearbook, vol. II, pt. 1, p. 78), Ukraine {ILC Yearbook, 1980, vol. II, pt. 1, p. 103), U.S.S.R. {id., p. 104), Yugoslavia {id., p. 106). These States were as follows: Afghanistan (A/C.6/31/SR.32, paras. 1 4 - 1 5 ; A/C.6/37/ SR.50, para. 76; A/C.6/38/SR.46, para. 21), Algeria (A/C.6/37/SR.48, paras. 3 3 - 3 6 ; A/C.6/38/SR.44, paras. 7 and 9), Argentina (A/C.6/37/SR.44, para. 68), Australia (A/ C.6/31/SR.27, paras. 1 5 - 2 3 ; A/C.6/37/SR.48, para. 9; A/C.6/38/SR.50, paras. 4 3 - 4 4 ) , Austria (A/C.6/31/SR.20, para. 2), Bahamas (A/C.6/37/SR.48, para. 81), Bangladesh {hj C.6/34/SR.50, para. 31), Bolivia (A/C.6/31/SR.32, paras. 2 1 - 2 2 ) , Brazil {id., SR.14, paras. 1 7 - 2 0 ; A/C.6/35/SR.47, paras. 2 7 - 2 8 ; A/C.6/37/SR.43, para. 57; A/C.6/38/ SR.38, para. 7), Bulgaria (A/C.6/31/SR.21, paras. 3 0 - 3 8 ; A/C.6/37/SR.48, para. 55; A/C.6/38/SR.47, para. 35), Byelorussia (A/C.6/31/SR.23, para. 5; A/C.6/37/SR.45, para. 21; A/C.6/38/SR.48, para. 64), Canada (A/C.6/31/SR.28, para. 4; A/C.6/38/SR.37, para. 12), Chile (A/C.6/38/SR.47, para. 28), China (A/C.6/34/SR.50, paras. 8 - 9 , 11; A/C.6/

46

Marina Spinedi

important debate took place in 1976, but in subsequent years there were also frequent speeches on the issue of the distinction between international crimes and international delicts131. 37/SR.44, para. 52; A/C.6/38/SR.37, para. 46), Cuba (A/C.6/31/SR.24, paras. 6 7 - 6 8 ) , Cyprus (A/C.6/31/SR.33, paras. 1 4 - 2 2 ; A/C.6/34/SR.44, para. 45; A/C.6/37/SR.46, para. 39; A/C.6/38/SR.50, paras. 7 - 9 , 11), Chechoslovakia (A/C.6/31/SR.24, paras. 4 0 - 4 1 ; A/C.6/32/SR.38, para. 3; A/C.6/33/SR.41, para. 53; A/C.6/37/SR.46, para. 7; A/C.6/38/SR.44, paras. 6 9 - 7 0 ) , Denmark (A/C.6/31/SR.19, para. 5; A/C.6/38/SR.40, paras. 5 7 - 5 8 ) , (A/C.6/31/SR.30, paras. 7 6 - 7 9 ; A/C.6/34/SR.51, para. 22; A/ C.6/38/SR.39, para. 25), £ / j a / W o r (A/C.6/31/SR.27, para. 48), Ethiopia (A/C.6/33/ SR.35, para. 15; A/C.6/37/SR.50, para. 16; A/C.6/38/SR.42, para. 11), Federal Republic of Germany (A/C.6/31/SR.24, paras. 7 1 - 7 3 ; A/C.6/33/SR.42, para. 59; A/C.6/35/ SR.45, para. 11; A/C.6/38/SR.39, paras. 3 and 8), Finland (A/C.6/31/SR.18, paras. 6 7 - 6 8 ; A/C.6/36/SR.48, para. 15; A/C.6/37/SR.45, para. 6), i r e » « (A/C.6/31/SR.26, paras. 4 - 7 ; A/C.6/32/SR.42, para. 3; A/C.6/37/SR.38, para. 16; A/C.6/38/SR.41, para. 26), O r ; » « » Democratic Republic (A/C.6/31/SR.25, paras. 3 2 - 3 3 ; A/C.6/36/SR.46, para. 33; A/C.6/37/SR.38, paras. 2 7 - 3 3 ; A/C.6/38/SR.36, paras. 6 6 - 6 9 ) , C k ) (A/ C.6/31/SR.24, para. 53), G r « « (/